Radha Bai and Others vs Yasoda Bai and Others

B. Subhashan Reddy, J.—These three appeals arise out of the judgment and decree dated 12th June, 1995 passed in O.S.No. 1071 of 1985 by the Court of the IV Additional Judge, City Civil Court, Hyderabad. Of course, it is a common judgment in the said suit and also in suit O.S.No. 548 of 1990. In O.S.No. 1071 of 1985, one P. Kishanlal is the plaintiff and as he died, his legal representatives were added as plaintiffs 2 to 8. That is a suit instituted against M/s. Smt. Yasoda Bai, V. Narasimha Chary and Angoori Bai claiming specific performance in respect of suit schedule building comprising of two floors and bearing municipal Nos. 21-2-146 and 21-2-156 situated at Gulzar House, Charkaman, Hyderabad. In O.S.No. 548 of 1990, same P. Kishanlal is the plaintiff and on account of his death, his legal representatives were added as plaintiffs 2 to 8 and the defendants are M/s. Angoori Bai, Chaturbhuj and V. Narasimha Chary. In the said suit, the relief is for the grant of perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the ground floor mulgi bearing No. 21-2-156.

The suit in O.S.No. 1071 of 1985 is based on oral agreement for consideration amount of Rs. 3.00 lakhs and the plaintiffs'' case is that Rs. 25,000 was paid and thereafter the 1st defendant who is the owner has not honoured the said agreement for sale and then executed sale-deeds in favour of defendants 2 and 3 in respect of the ground floor shop and the premises on the upper floor respectively. Both the suits were decreed by the trial court. The decree granted in O.S. No. 548 of 1990 is a question apart in these three appeals.

While CCCA No. 112/95 is filed by the plaintiffs against the judgment and decree of the Court below levying interest at the rate of 18 per cent per annum on the amount of balance consideration amount of Rs. 2,75,000 directed to be paid within three months, CCCA No. 124 of 1995 is filed by defendants 1 and 3 against the decree granted for specific performance relating to the ground floor portion and CCCA No. 141 of 1995 is filed by the 2nd defendant aggrieved by the grant of specific performance relating to the upstairs portion.

The parties are referred to as arrayed in the suit in O.S. No. 1071 of 1985.

The plea of the plaintiffs was that the deceased 1st plaintiff was the tenant protected by the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960(here in after referred to as "the Rent Control Act") in the ground floor shop and that rent control litigation was pending and as there was no substance in the rent control litigation and as the 1st respondent had reconciled, she, in the presence of her husband, had entered into an agreement to sell the suit schedule property, both ground floor shop and the upstair portion and received Rs 25,000/- and on receipt of the balance of consideration of Rs. 2,75,000, the sale-deed was to be executed. But, they had committed the breach of the agreement of sale and conveyed the ground-floor shop to the 3rd defendant and the upstair portion to the 2nd defendant in breach of the agreement of sale and that in view of the acquaintance of the parties, the agreement was not reduced into writing, but terms were settled and that an affidavit was filed by the 1st defendant in the rent control proceedings evidencing the oral agreement of sale and on account of the same, the rent control proceedings were not pursued and that they ended in dismissal and had become final, and that the 1st defendant and her husband due to ulterior motives, have conveyed the suit schedule property in favour of defendants 2 and 3 and that the defendants 2 and 3 had knowledge of the subsisting agreement of sale in favour of the plaintiff and they being the purchasers with knowledge and also not for value, they are bound to join the defendant No. 1 in executing the sale deed.

The defendant No. 1 has denied the very agreement of sale, while defendants 2 and 3 have pleaded that they have purchased their respective portions of the suit schedule property without knowledge of any such agreement and that they are bona fide purchasers for value.

On the basis of the pleadings of the plaintiffs and defendants, the following are the triable issues settled for trial:

(1) Whether there is an oral contract entered between the plaintiff and the first defendant''s husband in regard to the sale of the property to a total consideration of Rs. 3,00,000-00, and that the plaintiff paid Rs. 25,000-00, as alleged in the plaint on 27-3-1985?

(2) Whether defendants 2 and 3 are bona fide purchasers of the respective portions of the suit premises for valuable consideration from the 1st defendant through registered sale deeds dated 19-7-1985 and 10-9-1985?

(3) Whether the plaintiff is entitled to the refund of earnest money of Rs. 25,000-00 from the 1st defendant as an alternative remedy?

(4) Whether the plaintiff was ready and willing to perform his part of contract?

(5) To what relief?

In support of the pleas of the plaintiffs, P. Ws. 1 to 3 were examined and Exs. A-1 to A-9 were marked. The defendants have examined D.Ws. 1 to 3 and marked Exhibits B-1 to B-6.

P.W. 1 is one Mr. Shiva Bajanlal, aged about 105 years, as on the date of his deposition on 5-11-1994, who was examined on Commission. He is a pensioner and was working in the Office of a private medical practitioner, Dr. Roopkaran, which was in the vicinity of the suit property. He knows both the plaintiffs, defendant No. 1, her husband and also defendant No. 2. He knows the suit property and the occupants thereof. Because of his acquaintance with the 1st plaintiff, the 1st plaintiff had taken him at the time of transaction while proceeding to the house of the 1st defendant, along with his son - plaintiff No. 3 (PW 3) and one Mr. Panthulu. He speaks to the factum of the tenancy of the 1st plaintiff over the ground floor of the suit house, oral agreement of sale entered into by defendant No. 1 in the presence of her husband with plaintiff No. 1, presence of the plaintiff No. 3 and also Mr. Panthulu and payment of Rs. 25,000-00. He says that receipt was not passed by defendant No. 1 saying that after payment of entire consideration amount, the same will be passed. He also states that the total consideration amount arrived at was Rs. 3,00,000-00 and that plaintiff No. 1 had asked defendant No. 1 to get the Income Tax clearance certificate for the purpose of registration. He has denied the suggestion that he was the close relative of the plaintiff and that is why he was falsely deposing. He had admitted that he was a friend of plaintiff No. 1. With regard to plaintiff No. 1, he has stated details that he was in service in Begum Bazar and that thereafter he started his business with partnership with Noor Mohammed who was then running the business in the ground floor of the suit house. He refers plaintiff No. 3, whose name is P. Rajender Kumar, as Raju which only shows his close acquaintance with the plaintiffs. The close acquaintance need not be by reason of any close relationship. His evidence is natural, consistent and cogent and even after thorough cross-examination, his oral evidence came-out unshaken.

PW2 is one Mr. G. Lakshmaiah. He is also called as Panthulu. He was 80 years old as on 10-12-1994, when examined on Commission. He states that he had known the 1st plaintiff for 30 years before his death in the month of January, 1989. He also says that he knows plaintiffs 2 to 8 who were the wife and children of the deceased-1st plaintiff. He gives particulars of plaintiff No. 1 during his days of working for somebody at Begum Bazar and also doing his own business in Ayurvedic, Unani and raw drugs in the shop on the ground floor in the suit house. He says that when he was working in a private press at Begum Bazar, he came in contact with plaintiff No. 1 and that after leaving that place and working in some other place and ultimately left the same and was running a shop in front of the shop of plaintiff No 1. He also states that plaintiff No. 1 used to come and sit at his place and particularly, to smoke, and that in turn he used to go to the plaintiffs shop and sit there, presumably, as he has not much work on his hands. This kind of interaction and whiling away time by persons not having much work is very usual in Hyderabad. So, there is nothing unreasonable in the statement of PW2. PW2 fully corroborates the version of PW1 regarding the oral agreement of sale and payment of Rs. 25,000-00. As he was having good acquaintance, it is not unusual for the 1st plainitff to ask PW2 to accompany him and PW2 says that, on being asked, he had accompanied the 1st plaintiff along with his son Raju (3rd plaintiff) and Panditjee (PW1) to the house of defendant No. 1 and that both the defendant No. 1 and her husband had agreed to sell the suit house comprising of ground and first floors for a consideration of Rs. 3,00,000-00 and that plaintiff No. 1 had paid Rs. 25,000/- to them and that the balance of consideration amount was payable at the time of registration and that the registration was to be done after getting the Income Tax clearance. He categorically states that no receipt was passed and that plaintiff No. 1 was told by the husband of defendant No. 1 that receipt will be passed only after the full payment. There is nothing unnatural in the evidence of this witness and he fully corroborates all material particulars with regard to oral agreement of sale, fixation of consideration amount of Rs. 3,00,000-00, payment of Rs. 25,000-00, not passing the receipt and then payment of balance of consideration to be made after getting the Income Tax clearance certificate. We shall now come to the last witness for the plaintiffs i.e. PW3.

He states that they had been the tenants in the ground floor which comprises of one mulgi bearing municipal No. 21-2-156 at a monthly rent of Rs. 325/- and that the Rent Controller had refixed the rent at Rs. 60/- per month in fair rent proceedings. He states that the 1st defendant had purchased the mulgies from one Poonamchand vide registered sale-deed dated 26-11-1970 and that Mr. Noor Mohammed was the tenant in the suit premises before their occupation, and that there was an agreement of sale between plaintiff No. 1 (his father) and defendant No. 1 with regard to suit house on 273-1985 for consideration of Rs. 3,00,000-00 and that the agreement of sale was oral one. It is his statement that his father, the 1st plaintiff, had paid Rs. 25,000-00 to Defendant No. 1 as earnest money on 27-3-1985, but no receipt was given to his father and he was told that the receipt will be given after the full consideration was paid. He also states that his father had been all along ready and willing to perform his part of the contract and that the sale-deed was to be executed within three months after getting the Income Tax clearance certificate, but the said promise of getting Income Tax clearance certificate and execution of the sale-deed was breached by the 1st defendant and the sale-deeds were executed in favour of defendants 2 and 3 and the same were illegal and that defendants 2 and 3 had knowledge of the agreement of sale in between the 1st plaintiff and the 1st defendant and that the sale-deeds executed by defendant No. 1 in favour of defendants 2 and 3 are also not for value and were brought-up to defeat the just claims of the 1st plaintiff. He states that for the eviction of his father, defendant No. 1 had instituted RC No. 77 of 1983 on the file of IV Additional Rent Controller, Hyderabad and the same was pending till the oral agreement of sale and the same was not pursued by the defendant No. 1 and her husband and that on 24-7-1986 an affidavit was filed by the defendant No. 1 admitting the agreement of sale and receipt of earnest money and thereafter, the said proceedings were dismissed. A certified copy of the said agreement has been marked as Ex. A-2. He states that his father had sent a draft sale-deed (Ex. A-5) to defendant No. 1 to enable her obtaining Income Tax clearance certificate and that the defendant No. 1 had not obtained the said certificate and on the other hand, executed sale-deeds in favour of defendants 2 and 3 purporting to transfer the upstair portion and the ground floor portion respectively for a paltry amounts of Rs. 40,000/- and Rs. 45,000-00 respectively. He was subjected to lengthy cross-examination by all the defendants and what they wanted to point out was the belated filing of the Income Tax returns showing the suit transaction, only as an after-thought. They also tried to impeach the statement of PW3 regarding the authenticity of general power of attorney given by defendant No. 1 to her husband on the ground that the same was filed in the rent control proceedings initiated by the 1st defendant through her husband against Noor Mohammed way back in the year 1972 and that the same has been used for the suit transaction. Yet, another discrepancy pointed out to him was continuing the proceedings for fixation of fair rent even after the oral agreement of sale, set up by the plaintiffs. It was also suggested to him that no affidavit was filed as stated by him admitting the oral agreement of sale and receipt of Rs. 25,000/- and that Ex. A-2 was manipulated in collusion with the Record Keeper of Rent Controller. The suggestion was given on behalf of the 1st defendant that copy of the sale-deed which was in possession of the 1st plaintiff was given for a different purpose of reduction of municipal tax for the premises and not in connection with the agreement of sale. It was also projected that under Ex. A-9, which is the copy of the Power of Attorney, there was no power to the husband of defendant No. 1 to sell the property and that Ex. A-9 was only for the purpose of collection of rents and prosecution of rent control proceedings. Much stress has been laid during the cross-examination of P.W.3 that he did not file any evidence to show that plaintiff No. 1 was in possession of a cash of Rs. 3,00,000-00. We will deal with the defence set-up by the defendants and build-up in the nature of elicitation in cross-examination of P.W.3, as also making suggestions to him. But, on material particulars regarding oral agreement of sale pleaded by the plaintiff, P.W.3''s version regarding the visit to the house of defendant No. 1 and her husband accompanying his father, plaintiff No. 1, and P.Ws. 2 and 3, arriving at a consideration amount of Rs. 3,00,000-00 under oral agreement of sale, payment of Rs. 25,000-00 and the promise to pay the remaining amount after the obtaining of Income Tax clearance certificate by defendant No. 1, there is consistency and corroboration.

We now come to the evidence of defendants. D.W.1 is the husband of defendant No. 1. He admits that he had been conducting the suit on behalf of his wife. He states that his wife had purchased the suit house in the year 1970 from Mr. Gulabchand Gandhi and that Noor Mohammed was a tenant by then. He states that the suit property was purchased for the business of himself and his son and that as Noor Mohammed did not vacate, eviction proceedings before the Rent Controller in R.C. 266 of 1972 was filed and that Noor Mohammd and the 1st plaintiff had approached him and requested for time of 3 years to vacate the premises and that in the year 1979, a fresh rental deed was executed in favour of the 1st plaintiff and that as the 1st plaintiff did not vacate even after 3 years, eviction proceedings against him were initiated in R.C. No. 77 of 1983, that pending the above proceedings, in the year 1985, the first plaintiff had filed a petition for fixation of fair rent and that as the 1st plaintiff had not vacated the premises for even 15 years, his wife had sold the first floor of the suit property to defendant No. 2 in July, 1985 and the ground floor was sold to defendant No. 3 in September, 1985. He denies that he had agreed, as General Power of Attorney of his wife, to sell the suit property to the 1st plaintiff for a consideration of Rs. 3,00,000-00 and the receipt of Rs. 25,000-00 and says that there was no such transaction and as no amount of Rs. 25,000-00 was received, no receipt was passed. He also states that the title deed of the property was given to the 1st plaintiff as the latter had promised to get the property tax payable to the Municipal Corporation of Hyderabad reduced. He admits that his wife had given the power of attorney in the year 1975 to look after rent control proceedings including RC No. 77 of 1983 and that he had been looking after the said transaction on behalf of his wife, but denies that at no point of time, his wife had given him power to negotiate with anybody to sell the suit property. He also says that he had not seen the faces of PWs 1 and 2 and that he does not know them at all and that the suit was falsely laid. He says that the 1st floor portion was sold to the defendant No. 2 who was already a tenant for consideration of Rs. 40,000/- and that there was a separate passage from the rear side to the first floor. He denied that it was sold for undervalue saying that no other person had offered more than the price of Rs. 40,000/-. He denies the filing of any affidavit by his wife in the rent control case in RC No. 77 of 1983 admitting the oral agreement of sale and receipt of Rs. 25,000/- and that Ex. A-2 is false document. He also denies the handing-over of a draft agreement for enabling his wife to obtain the Income Tax clearance certificate. He says that in the year 1985, the market value of the ground floor of the suit property was Rs. 45,000/- as it was occupied by a tenant i.e. the 1st plaintiff and that is why it was sold to the defendant No. 3 for a price of Rs. 45,000/-. He denies that the said amount of Rs. 45,000/- was undervaluation. He stresses that the market value of the ground floor of the suit property was only Rs. 45,000/- because it was occupied by the 1st plaintiff as a tenant and as the litigation was going on in the rent control Court. He states that prior to the sale-deeds executed in favour of defendants 2 and 3, there were no agreements of sale and there were straight sale-deeds after two or three days of negotiations. The statement of D.W. 2 is quite inconsistent to this. He admits that himself and his wife had negotiated with defendant No. 3 for sale transaction. He emphatically said that his wife was not going to tender evidence in the suit and that he had not obtained any permission from the Court to depose on behalf of his wife and that he has not filed any General Power of Attorney or authorisation given by his wife to depose in the suit on her behalf. He accepts that there was no evidence to show that the plaintiff No. 1 had worked as servant under the previous tenant - Noor Mohammed - which was the plea set-up in connection with the occupation of the ground floor of the suit property by the plaintiff No. 1. He admits that it was he who had rented out the said premises to Noor Mohammed in the year 1970 at a monthly rent of Rs. 80/- and that it was he who negotiated with Noor Mohammed on behalf of his wife and that he was also passing the rent receipts to the tenant under his signature. He admits that he had been collecting rent from the 1st plaintiff and that some times, he used to go to the shop of the 1st plaintiff to collect the rents, some times, the 1st plaintiff used to come to him to pay the rents and then he used to pass the receipts and sometimes, even though he was receiving the rent, he was not passing the receipts. He admits that his wife had given him a General Power of Attorney in his favour to conduct the rent control proceedings and that the same G.P.A. was filed by the 1st plaintiff in the suit. He pleads ignorance as to what happended to the reduction of the municipal tax pleaded by him.

D.W.2 is Narasimhachary - defendant No. 2. He is a goldsmith by profession. He was aged 55 years as on the date of his deposition dated 6-4-1995. He had been the tenant in the 1st floor portion of the suit property since 1972. He has purchased the said portion under original of Ex. B-2 for a consideration of Rs. 40,000/-. Ex. B-2 is a xerox copy of the sale-deed obtained by him. Ex. B-3 is the sketch plan of the portion purchased by him. He states that the value of the premises purchased by him was not more than Rs. 40,000/-. D.W.2 did not file any written statement. He states that prior to obtaining of original of Ex. B-2-sale deed, the defendant had offered to sell the premises to him and there was an agreement of sale between them and that he paid Rs. 5,000/- pursuant to the same and the original of Ex. B-2 sale-deed was got executed later. He states that he has not given any paper publication before his purchase and that the 1st plaintiff had been a tenant in the ground floor even before he had occupied the 1st floor portion as tenant.

D.W.3 is one Mr. Surendra Kumar, who is the son of the 3rd defendant. He states that his mother had purchased the ground floor mulgi of the suit property under registered sale-deed from defendant No. 1 on 10-9-1985 for a consideration of Rs. 45,000/-. Ex. B-6 is the certified copy of the said sale-deed. He says that his mother and father had talks with defendant No. 1 before obtaining of the sale-deed and that the said talks took place two or three days before the registration of sale-deed. He also states that when the purchase was made, the value of the property was only Rs. 45,000/-. He says that after purchase, attornment of the tenancy was made and eviction petition was filed against the tenant which was allowed and that the matter was pending in appeal. He admits that he was aware of the cases pending between D-l and the 1st plaintiff and also D.W.2. He says that he was aware that there were rent control proceedings between defendant No. 1 and plaintiff No. 1 in regard to eviction of the plaintiff from the mulgi and that he does not know the result of the same. He states that their family was carrying the business under the name and style "Jagadamba Pearls" adjoining the suit property since last 20 years. His deposition was recorded on 6-4-1995 and it has to be taken that since 1975, they had been running business in pearls in the premises on the ground floor mulgi adjoining the suit property which had been under occupation of plaintiff No. 1 as a tenant. He admits that 15 or 20 days prior to purchasing the ground floor mulgi of the suit property by his mother, they came to know that there were litigations going on between defendant No. 1 and the 1st plaintiff before the Rent Control Court. He states the entire sale consideration amount was paid before the Registrar, but no separate receipt was obtained from defendant No. 1. He states that they never thought of purchasing the premises, but when defendant No. 1 was inclined to sell the same, they had purchased. He also states that his mother had intended to purchase the premises only two or three days prior to execution of original of Ex. B-6.

In so far as the documentary evidence is concerned, it is Exhibits A-2 and A-4 which assume significance. Ex. A-2 is the certified copy of the affidavit filed in RC No. 77 of 1983, which was a rent control proceedings initiated by defendant No. 1 against plaintiff No. 1 and Noor Mohammed. In paragraph 2, it is stated - that defendant No. 1 had instituted eviction proceedings against respondents stated above and that there was a settlement between respondent Nos. 1 and 2 pursuant to which respondent No. 1 had paid Rs. 10,000/- to respondent No. 2 and in lieu of the same, the latter has given-up his tenancy rights in favour of respondent No. 1 with her permission and that the respondent No. 1(plaintiff No. 1) had also executed lease-deed in her favour, that plaintiff No. 1 had expressed his intention to purchase the suit property and that she had agreed to sell the same for consideration of Rs. 3,00,000-00 and pursuant to that, has received Rs. 25,000-00 as part payment of sale consideration and that she will execute the sale-deed in favour of the 1st plaintiff pursuant to the agreement of sale and as such, she was not pressing the eviction petition and as such, the eviction petition be closed. The same is dated 24-7-1986. Endorsement shows that copy application No. 7116 of 1989 was filed on 12-12-1989 and the stamps were called for on 16-12-1989 and it was made ready on 18-12-1989 and was furnished on the same date and it bears the seal of the Court and signature of the Superintendent. There can be little doubt about the authenticity of the Ex. A-2. It cannot be said as a manipulated document, as it has been issued by the Court in due process of law. In so far as Ex. A-4 is concerned, that is a counter filed in the rent control proceedings, in which there is an averment of the oral agreement of sale for Rs. 3,00,000-00 and the payment of Rs. 25,000-00 as part sale-consideration amount.

Several judicial precedents have been cited by either side. But, we do not consider the mention of the same for the reason that they relate to settled proposition of law like the validity of oral agreement of sale as also the desirability of protecting the bona fide purchasers for value even if they are the purchasers subsequent to the oral agreement of sale with another, while considering the plea for specific perform and of the contract. There are catena of decisions that there can be oral agreement of sale, it need not necessarily be in writing and that in spite of a prior agreement of sale and the right to enforce the same, on equitable considerations, the subsequent purchasers can be protected if the purchase is bona fide and for value adjusting the rights of the first agreement-holder by other equitable measures.

The question is as to whether oral agreement of sale pleaded here dated 27-3-1985 has been established beyond doubt? Normally, when a contract of sale is made, written agreement of sale is obtained. That being the normal practice, may be, there are some exceptions, in view of the peculiar facts and circumstances. In the instant case, there is a relationship of landlady and the tenant between the 1st defendant and the 1st plaintiff. That had been there ever since 1979. In fact, one Mr. Noor Mohammed was there as a tenant and the 1st defendant was very particular in getting him evicted and the 1st plaintiff had intervened and settled the matter resulting in vacation of the premises by Noor Mohammed and then the 1st plaintiff was continued as a tenant afresh. These are the facts not disputed. But, the case of the 1st defendant is that the fresh tenancy in favour of the 1st plaintiff was given only for three years and that 3 years elapsed in the year 1982, but as he did not vacate, then in the year 1983, RC No. 77 of 1983 was lodged for the eviction of the 1st plaintiff. One important thing which has to be taken note of is that the 1st defendant had been pleading the personal requirement for the purpose of setting up business by her husband (D.W.I) and her son. But the contrary was done as the 1st defendant had let out the first floor of the suit house in favour of defendant No. 2 when it fell vacant. That itself demolishes the plea of the personal requirement. Concerning this and also the meek plea of the default in payment of rents, it is most probable that the 1st defendant and her husband thought of selling away the property. In fact, the above intention of the 1st defendant and her husband to sell away the suit property is proved by the factum of execution of the sale-deeds in favour of D-2 and D-3. As such, it is not a case of an unwilling-seller-landlady against whom the intention of sale is thrust by weaving the facts and circumstances to sustain the same. There was no such necessity for the 1st plaintiff to create such fact of willingness of the 1st defendant to sell. The fact that the 1st defendant was willing to sell away the suit property is clearly established beyond all reasonable doubts. Coming to the proof of oral agreement of sale, as already stated above, the fact that there were talks in between plaintiff No. 1 and D.W.I on that aspect and pursuant to the said settlement with regard to the sale of the suit property and determination of consideration amount of Rs. 3,00,000-00, the plaintiff No. 1 and P.Ws. 1 to 3 went to the house of defendant No. 1 and her husband - D.W.I and paid the amount of Rs. 25,000/- and no receipt was passed on the ground that comprehensive receipt will be passed after payment of the entire consideration and that the defendant No. 1 was required to obtain the Income Tax clearance certificate and the balance of consideration of Rs. 2,75,000/- would be payable at the time of registration, for which time was set, are consistent, cogent and credible. Ex. A-1 which is the copy of the registered sale-deed of the year 1970 under which defendant No. 1 got the title to the suit property and also a copy of the General Power of Attorney executed by defendant No. 1 in favour of her husband D.W.I, were handed-over to the 1st plaintiff and the plea of the plaintiffs that they were so handed-over in connection with the sale transaction is quite plausible and believable and the explanation of D.W. 1 that they were given for the purpose of reduction of municipal tax is unbelievable, as there is no basis for the same and in fact, no such proceedings came to light. Further, for reduction in house tax, a copy of the sale-deed obtained by defendant No. 1, has got no relevance at all. The house tax under the Municipal Corporation of Hyderabad Act, 1955 is assessed on the annual rateable value (briefly called as "ARV") basing on either rents fetched for the premises, if occupied by the tenants, and if it is owner occupied, then on the presumptive rents. In the instant case, it is an admitted fact that the suit property was occupied by the tenants and as such, there was no occasion for any proceedings in the reduction of house tax, as it was on the rents payable by the tenants. As such, we believe the version of the plaintiffs that Exs. A-l and A-9 were handed-over to plaintiff No. 1 only in connection with the sale transaction and not otherwise. With regard to the argument of the defendant No. 1 that there was no power for D.W.I to deal with the suit transaction, we do not agree with the contention raised by the learned Counsel M/s. C. Poornaiah and T. Bali Reddy, appearing for the appellants/defendants 1 to 3. Clause (4) of Ex. A-9 clearly states : "To receive, accept any consideration whether in cash Bank draft. Cheque or in any other form and to give receipt in full or partial discharge of the receipt, of such consideration." As such, D.W.1 was fully authorised to deal with the sale transaction and arrived at the consideration amount and in any event, there is no legal flaw for the reason that the plaintiff had paid Rs. 25,000-00 to defendant No. 1 and even if the said cash of Rs. 25,000-00 was handed over physically to D. W. 1 in presence of defendant No. 1, there cannot be any legal infirmity as there is consensus ad idem between the 1st plaintiff and the 1st defendant. This is further corroborated by Ex. A-2-affidavit. The said affidavit has been sworn by defendant No. 1 and filed in the rent control proceedings in RC 77 of 1983. The original is not traceable is not a ground to disbelieve Ex. A-2. Ex. A-2 was obtained from the Court of the Rent Controller and there is no doubt about the genuineness of Ex. A-2. The defendant No. 1 has pleaded that the same has been manipulated in collusion with the Record Keeper, but such a plea was not proved, as the burden of such proof was cast on the 1st defendant. What is more, the 1st defendant did not even choose to examine herself to deny either oral agreement of sale, receipt of part consideration of Rs. 25,000-00, or filing of such affidavit i.e. original of Ex. A-2 in the rent control proceedings. Then, inevitably the only presumption can be that she did not choose to enter the witness box for the reason that the truth will be divulged during her oral evidence. Further, there is no explanation as to why she is not being examined. If she was wary of coming to the Court, she ought to have been examined on commission. It is pertinent to mention that P.Ws. 1 & 2, because of their old age, were examined on Commission and no such attempt was made to examine defendant No. 1 on Commission, even assuming that she being a lady and maintaining some traditional values was not inclined to come and depose in the open Court proceedings. Without giving any explanation, D.W.I simply says that "my wife is not going to tender evidence in this suit. I have not obtained any permission from the Court to depose on behalf of my wife in this suit. I have not filed any GPA or authorisation given by my wife to depose in this suit on behalf of her." As such, adverse inference has to be drawn that defendant No. 1 had avoided oral evidence, being wary of the questions relating to the suit transaction, oral agreement of sale, receipt of consideration amount and also filing of the affidavit (original of Ex. A-2). That apart, in the counter, Ex. A-4, filed in the rent control proceedings in RC No. 77 of 1983, it was specifically stated that an affidavit was filed in the said rent control proceedings with regard to the agreement of sale, receipt of consideration amount, and a plea to close the case, but no rejoinder has been filed by the 1st defendant. It is pertinent to mention that the rent control proceedings started with the petition in that Court by the 1st defendant and when in the counter, a specific plea was taken that the rent control proceedings were not tenable and have to be closed for the reason that the landlady had agreed to sell suit premises and also received a part consideration amount and she filed an affidavit to that effect and pleaded for closure of the case. It was incumbent upon the 1st defendant to deny the same by filing a rejoinder and non-filing of the same also raises a presumption that the averments made regarding the affidavit are correct. If the original affidavit which is filed in the rent control proceedings is missing, the plaintiffs cannot be found fault with the same, as firstly, they could only file the certified copy of the affidavit and it was for the 1st defendant to go into the box and deny the same. But, that was not done. There is yet another important factor to note that it is not a case as if the 1st plaintiff being a statutory tenant wanted to take undue advantage of paying a paltry sum towards consideration amount. The suit property is situated in a prime place in the old city, two furlongs away from the High Court premises towards South. It is beyond one''s comprehension that in the year 1985, the value of the ground floor would have been only Rs. 45,000-00 and that of the 1st floor Rs. 40,000-00. If it was the case of the 1st defendant that she was fed-up with the rent control protection to the statutory tenants like the 1st plaintiff and the 2nd defendant, naturally, it is expected of the 1st defendant to get the maximum price possible and when the 1st plaintiff was a statutory tenant on the ground floor mulgi, which is very valuable for business purposes, the value by no means, would have been Rs. 45,000/-. We also fail to understand why defendant No. 1 had to sell for a paltry sum of Rs. 45,000/- to defendant No. 3 with a burden to evict the 1st plaintiff from the premises who was a statutory tenant and could be evicted only under the provisions of the Rent Control Act, when the first plaintiff, being clothed with statutory protection, had offered a price of Rs. 3,00,000-00. At the place where the suit property is situated, a total consideration of Rs. 85,000/- for the suit property comprising of two floors and more so, ground floor being a mulgi, is a mere pittance. The learned Counsel for the appellants/defendants 1 to 3 submit that the adequacy of consideration amount is no ground, but the same is only relevant in a suit for specific performance of the contract, if such plea is taken by the defendant with regard to inadequacy of consideration amount and has got no relevance in a case lake this where the point for consideration is as to whether the subsequent purchaser has purchased for value which means real value. Further, the fact that defendants 2 and 3 are not bona fide purchasers is beyond any pale of doubt. The defendant No. 2 had been the tenant on the 1st floor of the suit house since years before the oral agreement of sale and he had been aware of the litigation in between the 1st plaintiff and the 1st defendant and even with regard to defendant No. 3, it is admitted that for years before 1985, they had been doing pearls business in the mulgi (shop) adjoining the mulgi of the suit property which had been under occupation of plaintiff No. 1 and they had been aware of the litigation in between the 1st plaintiff and the 1st defendant. As such, the defendants 2 and 3 are not the bona fide purchasers for value.

Mr. T. Veerabhadraiah, the learned Counsel appearing for the appellant in CCCA No. 112 of 1995 submits that levy of 18 per cent interest on the balance of consideration of Rs. 2,75,000/- is illegal and has to be set aside. In this connection, the contention of the learned Counsel M/s. C. Poornaiah and T. Bali Reddy, may also have to be considered. It is argued by the learned; Counsel for the defendants 1 to 3 that the plaintiffs did not prove that they had possessed the amount of Rs. 2,75,000/- which is the balance of consideration amount payable. Firstly, this is not a plea sustainable for the reason that very agreement of sale was disputed and that it was not the case of the 1st defendant that she was ready and willing to perform her part of contract, but the 1st plaintiff was not ready with the balance of consideration amount. At the relevant point of time, Section 230-A of Income Tax Act warranted obtaining of Income Tax clearance certificate enabling the registration of document. Admittedly, the same has not been complied with even though the draft deed - Ex. A-5 - was handed-over to D.W.I, which we believe to be true. Further, Explanation to Section 16(c) of Specific Relief Act, 1963 expressly states that the consideration amount need not be deposited by the suitor while filing the suit. In fact, no petition has been filed seeking deposit of the balance of consideration amount and there was no order of the court pending suit to deposit the said amount. There is catena of decisions, which we feel not necessary to refer to such cases, and suffice it to refer to the latest judgment of the Supreme Court in Sukhbir Singh and Ors. v. Brijpal Singh and Ors. 1998 (5) Supreme 118 that the plaintiff need not show the cash to sustain the plea of the specific performance. As such, the decree of the lower Court in levying 18 per cent interest on the balance consideration amount of Rs. 2,75,000/- is set aside.

In view of what is stated supra, while we concur with the judgment and decree of the trial Court with regard to the relief of specific performance of the oral agreement of sale dated 27-3-1985, we set aside its judgment in so far as imposition of 18% on the balance of consideration amount of Rs. 2,75,000/- is concerned.

In the result, CCCA 112 of 1995 is allowed, while CCCAs 124/95 and 141 /95 are dismissed. In the circumstances, we direct the parties to bear their own costs in these appeals.