Thummalapalli Viswanadham and Another vs Majeti Govindarajulu

P.S. Narayana, J.—The unsuccessful defendants in OS No. 365 of 1982 on the file II Additional Subordinate Judge, Kakinada, dated 20.8.1990, had preferred the present appeal. The plaintiff in the said suit is the respondent in the appeal.

For the purpose of convenience, the parties hereinafter would be referred to as plaintiff and defendants as arrayed in the suit.

The plaintiff filed the suit for recovery of an amount of Rs. 38,240/- being the advance together with interest from 6.3.1982 to 30.11.1982 at 12% per annum and damages and for other appropriate reliefs.

The refund was prayed for in view of the clause in the agreement of sale dated 6.3.1982 executed by the defendants in favour of the plaintiff agreeing to sell an extent of 3 acres of land out of 6 acres 94 cents in S.No. 2/2 of Sarpavaram village in the then Kakinada Taluq. The learned Judge, on the strength of the respective pleadings of the parties, having settled the issues, recorded the evidence of PW.1, the plaintiff, DW.1, the 1st defendant, and DWs. 2 to 6, marked Exs.A1 to A16 and Exs.B1 to B18, and ultimately came to the conclusion that the plaintiff is entitled for a decree in part for a sum of Rs.30,000/- with proportionate costs and subsequent interest at 6% per annum, and the rest of the suit claim was dismissed without costs. Aggrieved by the same, the present appeal is preferred.

CONTENTIONS OF SRI A.V. SESHA SAI

Sri A.V. Sesha Sai, learned Counsel representing the appellants-defendants

1 and 2 had taken this Court through the respective pleadings of the parties, the issues settled and the evidence available on record and would maintain that in the light of the recitals of Ex.A1 and the admissions made by PW.1 and also clear evidence of DWs.1 to 6, it is clear that the breach was on the part of the plaintiff and not on the part of the defendants and hence in the facts and circumstances, the order of refund is bad in law. The learned Counsel also explained the conduct of the parties and would point out that the plaintiff was satisfied about the title and entered into the transaction in question and without any just cause or any reason whatsoever inasmuch as he was unable to perform his part of the contract for want of funds, he had gone back and hence the learned Judge is not justified in granting the decree as referred to above. The learned Counsel also pointed out the exchange of notices and the contents thereof and also the other oral evidence available on record and would maintain that the evidence of DWs.2 to 6 being very clear on the title to the property, the findings recorded by the learned Judge cannot be sustained and the same are liable to be set aside in the facts and circumstances of the case.

CONTENTIONS OF SRI V.L.N.G.K. MURTHY

Sri V.L.N.G.K. Murthy, learned Counsel representing the respondent-plaintiff would maintain the fact that a notice had been given demanding partition is not in dispute and the other factual aspects and the subsequent events would clearly go to show that the plaintiff was ready and willing to perform his part of the contract provided the necessary clarification is given by the 1st defendant and inasmuch as no such clarification is forthcoming, the further proceedings in relation to the transaction in question could not be carried out to its logical end and hence the learned Judge on appreciation of the facts and circumstances came to the conclusion that the plaintiff is entitled to a substantial portion of the relief prayed for.

Heard the counsel and perused the oral and documentary evidence available on record.

In the light of the rival contentions advanced by both the counsel before this Court, the following points arise for consideration:

Whether the findings recorded by the learned Judge in relation to the agreement of sale and liability of the defendants to pay the suit amount to the plaintiff are to be confirmed or to be disturbed in the facts and circumstances of the case?

If so, to what relief the parties would be entitled to?

POINT NO.1:

The plaintiff filed the suit to recover the suit amount of Rs.38,240/- with interest as referred to supra. It was pleaded in the plaint that the defendants executed an agreement of sale dated 6.3.1982 in favour of the plaintiff agreeing to sell 3 acres of land out of 6 acres 94 cents in S.No. 2/2 of Sarpavaram village in Kakinada Taluq to the plaintiff for a total consideration of Rs.90,000/-. The defendants then represented to the plaintiff that they acquired full rights for the said land as mentioned in the agreement and that they would see that Nageswara Rao also joins in the execution of the sale deed or at least attest the same. Believing the same, the plaintiff entered into the said agreement and the defendants received a sum of Rs.30,000/- from the plaintiff as advance from out of the sale consideration. On 23.3.1982, the plaintiff received a notice dated 15.3.1982 from Sri V. Srirama Murthy, Advocate, Kakinada, on behalf of the 1st defendant''s brother Ranga Rao claiming the right in an extent of 21 acres 28 cents of land of Sarpavaram on the ground that Thummalapalli Veeranna died intestate including the land covered by the said notice, the plaintiff contracted the 1st defendant and questioned him about the claim made by Ranga Rao. The 1st defendant stated that he would talk to his brother and tell the plaintiff in a short time. As the 1st defendant did not meet and satisfy the plaintiff, the plaintiff got issued a notice dated 8.4.1982, for which the defendants got issued a reply thereto on 20.5.1982 along with the copy of the reply notice to the notice of Ranga Rao. In the said replies, the defendants set up vague and conflicting versions regarding the shares of his brothers Ranga Rao and Nageswara Rao in the property while admitting that they too get shares as per the partition between Veeranna and his sons in 1964 as mentioned in Ranga Rao''s notice. The defendants failed to satisfactorily establish their exclusive right to the property covered by the agreement. While so, the plaintiff received another notice dated 20.5.1982 from the 1st defendant''s brother Nageswara Rao through his Advocate stating that he too has got a share in the property. Thereupon the plaintiff got issued another notice dated 24.5.1982 to the defendants'' Advocate and the defendants gave a reply dated 28.5.1982 in which the defendants while admitting that their property and Nageswara Rao''s property are not divided and vaguely alleged that Nageswara Rao sold his share to 1st defendant''s daughter and that he is in possession of the whole property. The plaintiff got a reply notice dated 29.5.1982 seeking further clarification for which the defendants gave a reply dated 30.5.1982 issued through their Advocate with untenable allegations. Therefore, it is evident that the defendants are not acting fairly and honestly and that they were only trying to hasten up and compel the plaintiff to pay the balance and take the sale deed irrespective of the defendants being able to convey good title in respect of the agreement properly or to knock off, if possible, the huge advance amount of Rs.30,000/- received by them under the agreement. It also become clear that unless the 1st defendant''s brother Nageswara Rao and also the 1st defendants daughter, who is said to be holding an agreement of sale from the said Nageswara Rao, are also joined as parties to the sale deed in favour of the plaintiff, the defendant alone cannot convey good title for the agreed land to the plaintiff. The 1st defendant''s brother Nageswara Rao filed OS No.308 of 1982 on the file of II Additional Subordinate Judge, Kakinada for partition of his share and the same is pending and the said Nageswara Rao is contesting that the alleged sale agreement in favour of the 1st defendant''s daughter is sham and nominee and also that the Will dated 8.2.1972 said to be of Veeranna is not true and genuine. It was also represented by the defendants that the original sale deed dated 23.5.1970 executed by D1''s father was lost and not traced, but subsequently came to know that the defendants gave the said sale deed as security for loan taken from the Andhra Bank and the loan is still outstanding. This is another instance to show that the defendants are not reliable persons. Therefore, the defendants not only failed to make out good title to them but they are also guilty of lack of fairness in their dealings and suppression of material facts and committed breach of the agreement, and therefore the plaintiff got issued a notice dated 3.6.1982 to the defendants canceling the agreement and demanding refund of the advance of Rs.30,000/- with interest thereon at 12% p.a., from the date of agreement and also a further sum of Rs.5,000/- as damages suffered by the plaintiff on account of breach of the agreement committed by the defendants. The plaintiff has always been ready willing to take the sale deed, but the defendants failed to make out a title free from defect and illegally insisted that the plaintiff should take a sale deed even without making out a good title.

In the written statement filed, the execution of the agreement of sale dated 6.3.1982 was not denied. It was also pleaded that originally the said property was purchased by late Veeranna, the father of 1st defendant, under a registered sale deed dated 30.5.1958. While partitioning the ancestral properties, the said Veeranna kept back this property for himself claiming it to be his self-acquired property. He sold a portion of the said property to the 1st defendant as per registered sale deed dated 23.5.1970 to an extent of 1 acre 63 cents in S.No.2/2 apart from portions in other survey numbers. In S.No.2/2 there is still 5 acres 30 cents left over and late Thummalapalli Veeranna, the father of D.1 executed a Will dated 8.2.1972 whereunder he conveyed 346 cents in S.No.2/2 to the 1st defendant and 1 acre 84 cents to the 1st defendant''s brother, Nageswara Rao. Thus, the 1st defendant became the owner of 5 acres 9 cents in S.No.2/2 in his own right. But the 1st defendant was in possession of the entire property and during the life time of his father, Veeranna attending to the cultivation, repairs etc. The property is a dry land Mango Thope not fetching any income and therefore, the 1st defendant himself invested several thousands of rupees to level it and to bring it under cultivation. The other brothers who received substantial portions of wet lands did not show any interest to advance and claim to this land at any time. Nageswara Rao who was a beneficiary under the Will for an extent of 1 acre 84 cents offered to sell away his portion to the 1st defendant, who purchased it in the name of his daughter Pasupuleti Manikyam and obtained a possessory agreement of sale on 7.7.1980 along with some other portion of the properties for a sum of Rs.22,000/-. The 1st defendant continued in possession of the property as owner of 6 acres 94 cents. From this property the defendant agreed to sell 3 acres in specified boundaries to the plaintiff for the discharge of some of the pressing debts of 1st defendant, but that portion which was sought to be sold is not the portion covered by sale deed dated 23.5.1970. According to the agreement, the sale was to be completed before 5th June, 1982 as the creditor of the 1st defendant was pressing for the payment. The debts were clearly mentioned in the agreement of sale. It was a condition specifically stipulated as essence of the contract. The plaintiff came to the schedule plot, ascertained from the neighbouring owners of the lands regarding the possession and enjoyment and also ascertained from his brothers with regard to the title of D1 and took away the Photostat copy of the Will and also verified the registration extract of the sale deed and having verified with his legal advisor and having thoroughly satisfied about the title, possession and enjoyment of the 1st defendant and having found the urgent necessity for the sale, entered into the suit agreement promising to complete the sale within 3 months. But in spite of the repeated request, he did not go through the transaction. On the other hand, he was searching ways and means to get rid of the agreement while posing as if he is interested to get through the same. Meanwhile, the brothers of the 1st defendant got issued notices to the 1st defendant. The plaintiff with ulterior motive to get rid of the agreement, got a copy marked to him. Therefore, the 1st defendant got issued notices demanding performance of the contract and the amount of Rs.30,000/- is only an earnest money but not advance. It is true that the brother of D1 got issued a notice and the plaintiff himself managed to get a copy of it for himself and that the other brothers of the 1st defendant also got issued notices cashing on the predicament situation, the 1st defendant is placed at the instance of the plaintiff and with a view to try their change. The suit filed by Nageswara Rao is also being conducted by the plaintiff''s legal advisor and it is absurd to say that the agreement by Nageswara Rao is either sham or nominal or that the Will of Veeranna is neither true nor genuine. The 1st defendant himself forgot about the original sale deed dated 23.5.1970 as it was available in Andhra Bank as security towards loan taken by the defendant and which is not now in vogue. It is the plaintiff who committed breach of contract and is trying to catch every straw to get over his liability and mulct the defendants with liability. The plaintiff himself having given a go-bye to the contract cannot turn round and try to enforce the same. The plaintiff is the person who committed the breach, he is not entitled to the alleged refund or interest.

The learned Judge settled the following issues:

Whether the plaintiff is ready and willing to perform his part of the suit agreement to sell?

Whether the defendants are liable to pay the suit amount to the plaintiff?

To what relief?

The plaintiff examined himself as PW.1 and Exs.A1 to A16 were marked. Likewise, on behalf of the defendants DWs.1 to 6 were examined and Exs.B1 to B18 were marked.

The recitals in the agreement of sale in question-Ex.A1, dated 6.3.1982, read as hereunder:

Ex.A2 is the office copy of notice issued by Thummalapalli Ranga Rao to Thummalapalli Viswanadham and 5 others, dated 15.3.1982. In the said notice, the plaintiff herein is shown as 6th party and after narrating several facts in paragraphs 1 to 5 of the notice, at paragraph 6 a demand was made calling upon parties 1 to 5 shown therein to cooperate in effecting a partition of the schedule lands by meets and bunds. Ex.A3 is the office copy of notice issued by the plaintiff to the defendants dated 8.4.1982, wherein the receipt of the notice dated 15.3.1982 by Sri V.Srirama Murthy, Advocate, Kakinada, issued on behalf of Thummalapalli Ranga Rao, claiming that the land agreed to be sold and certain other properties to be joint family properties and it was also stated that the 1st defendant represented to him that the 1st defendant will talk to his brother and tell him about the matter in a short time and he has been waiting all these days for the reply, but nothing is forthcoming and further specifically it was stated that he has no objection to perform his part of the contract if the 1st defendant is ready to clear the cloud of title cast on account of 1st defendant''s brother claim and it was also stated that he has been ready and willing to perform his part of the contract and complete the transaction within the agreed period. Ex.A4 is the office copy of the notice issued by Thummalapalli Nageswara Rao to Thummalapalli Viswanadham and 5 others, dated 20.5.1982. In Ex.A5, the notice sent by Thummalapalli Nageswara Rao, son of late Veeranna, dated 20.5.1982, it was stated that Thummalapalli Ranga Rao issued the notice claiming partition and he had accepted the said notice and adopted the contents of the said notice and he also called upon the other sharers to divide the said property by metes and bunds. Ex.A6 is the office copy of the notice issued by the plaintiff to defendants 24.5.1982. Ex.A7 is the reply notice issued defendants'' Advocate to plaintiff''s Advocate dated 28.5.1982. Likewise, Exs.A8 to A11 are also the notices and reply notices. Ex.A12 is the S.B. Account Pass Book. Exs.A13and A14 are the ledgers, Ex.A15 is the Photostat copy of the sale deed dated 23.5.1970 executed by Thummalapalli Veeranna in favour of Thummalapalli Viswanadham and Ex.A16 is the Photostat copy of the Will executed by Thummalapalli Veeranna. Exs. A15 and A16 are relied upon as they relate to the nature of the title.

PW.1 was examined, who had deposed about the family particulars of the 1st defendant and also deposed that he learnt that when the land of the defendants had been put to sale through a mediator, he agreed to purchase the same. The defendants 1 and 2 executed an agreement of sale dated 6.3.1982 in his favour for the suit land agreeing to sell the same, which is marked as Ex.A1, and the total sale consideration was Rs.90,000/- as mentioned in Ex.A1 and he paid advance sale consideration of Rs.30,000/- at the time of Ex.A1 and his Advocate scrutinized the documents of defendants 1 and 2 before execution of Ex.A1. This witness also deposed about certain recitals made in Ex.A1. PW.1 also further deposed that the 1st defendant agreed to include his brother Nageswara Rao in the said sale deed. It is pertinent to note that such a recital is not there in Ex.A1. PW.1 also deposed that in pursuance of Ex.A1, three months time was fixed for taking the document and the said time was stip7ulated for getting the land measured and for getting the money ready and the defendants 1 and 2 had undertook to get the sale deed signed by 1st defendant''s brother Nageswara Rao also. It was agreed so because Nageswara Rao was given some rights under father''s Will. PW.1 also deposed that he had received a notice-Ex.A2 from Thummalapalli Ranga Rao, another brother of 1st defendant, and the said Ranga Rao claimed the property as joint, and PW.1 had questioned the 1st defendant as to why Ranga Rao made such a claim and the 1st defendant promised to contact Ranga Rao and inform the same to him, but he did not inform him anything and thereupon PW.1 issued a notice dated 8.4.1982, the office copy of the same was marked as Ex.A3. The 1st defendant did not met him even after receipt of Ex.A3. He further deposed that one and half months later, the 1st defendant got issued a reply notice dated 20.5.1982, which is marked as Ex.A4, claiming rights in the property under Ex.A5. It is needless to say that the substance of the said notice had already been referred to supra. PW.1 issued a reply notice to Ex.A4, office copy of the same was marked as Ex.A6. PW.1 also deposed that he sought clarification of certain aspects relating to the title and the 1st defendant sent a reply notice dated 28.5.1982, which is marked as Ex.A7, but no clarification was given in this regard. Again it appears that certain notices were got issued under Exs.A9 to A11. PW.1 also deposed that Nageswara Rao filed suit OS No.308 of 1982 on the file of I Additional Subordinate Judge, Kakinada, for partition. Defendant No.1 informed PW.1 that he purchased more than five acres of land from his father, but he did not show the original document to him at the time of Ex.A1 and he represented that it was misplaced. Defendant No.1 promised to give other properties as security. Subsequently PW.1 came to know that the 1st defendant deposited the document with Andhra Bank and obtained loan and the defendant No.1 never informed him about any agreement of sale said to have been executed by Nageswara Rao in favour of his daughter. PW.1 deposed that for these reasons he came to the conclusion that the 1st defendant has no marketable title over the plaint schedule property. Hence, he demanded for refund of amount. Certain further details also had been deposed by PW.1. PW.1 also deposed about the deposit of Rs.70,000/-, the balance of sale consideration and expenses met by him, in Bank of India, Kakinada, and the pass book was marked as Ex.A12 and the ledger of the firm and the relevant Khatha were marked as Exs.A13 and A14. This witness was also recalled and cross-examined at length. PW.1 deposed in his cross-examination that he had seen the suit property, but he had not enquired with any one else except the broker and the 1st defendant with regard to the title over the suit property and PW.1 had consulted his Advocate and he visited the suit property not more than twice and he had no prior acquaintance with 1st defendant and as he had confidence in 1st defendant, he did not make enquiries with anyone. However, this witness made certain admissions that the title deeds of the 1st defendant were verified by the Advocate and Ex.A1 was drafted by his Advocate, who verified the documents and satisfied about the title, and this witness also no doubt made certain admissions about the recitals made in Ex.A1, the penal clause and other aspects. This witness in cross-examination no doubt admitted that the property covered by Exs.A15 and A16 had been agreed to be sold under Ex.A1 and he also admitted that he knows the brothers of the 1st defendant and the 1st defendant informed him that he borrowed the loan from the Land Mortgage Bank, however, he had deposed that it is not true to say that he informed PW.1 that he borrowed loan by mortgaging the land agreed to be sold. PW.1 also deposed that he did not enquire with the brother of the 1st defendant Nageswara Rao whether he can purchase the land got by the defendant under Ex.A16. This witness also deposed that it is true that the defendant informed him twice or thrice that he was prepared to get the land measured and delivered possession to him. However, this witness specifically deposed that it is not true to say that since he had no money and since he had no interest to obtain the sale deed, he was setting up the false case. Several other suggestions also had been denied by PW.1.

Defendant No.1 examined himself as DW.1. This witness had deposed about several of the factual details and also the documentary evidence.

Ex.B1 is the Encumbrance Certificate issued by the Sub-Registrar, dated 21.5.1982; Ex.B2 is the certified copy of the plaint in OS No.180 of 1982 on the file of Subordinate Judge, Kakinada; Ex.B3 is the written statement; Ex.B4 is the certified copy of the decree in the said suit; Ex.B5 is the certified copy of the sale agreement executed by Nageswara Rao in favour of Manikyam; Ex.B6 is the sale agreement receipt issued by Kakinada Postal Employees Co-operative Building Society, Kakinada, dated 12.6.1982; Ex.B7 is the certified copy of the judgment in OS No.157 of 1982 on the file of I Additional Subordinate Judge, Kakinada; Ex.B8 is the decree; Ex.B9 is the certified copy of the plaint in OS No.308 of 1982 on the file of Subordinate Judge, Kakinada; Ex.B10 is the certified copy of Vakalat filed in the said suit on behalf of the plaintiff; Ex.B11 is the certified copy of the written statement in the said suit; Ex.B12 is the certified copy of Memo; Ex.B13 is also the Photostat copy of the Memo and Ex.B14 is the certified copy of the order in OS No.308 of 1982 referred to above. The Photostat copies of the sale deeds dated 23.1.1985, 23.1.1985, 23.1.1985 and 23.1.1985 respectively were marked as Exs.B15 to B18.

No doubt DW.1 deposed that the breach had been committed by PW.1 only and they committed no breach as defendants in the suit. This witness not only deposed about the documents but made several admissions relating to the litigations in relation to the property covered by Ex.A1.

DW.2 had deposed about the suit transaction and also PW.1 consulting him before entering into the sale transaction and this witness also deposed that the agreement of sale was executed at the house of the Advocate of PW.1 he was one of the attestors of Ex.A1 and PW.1''s Advocate verified the title deeds of DW.1 before execution of Ex.A1 and he was satisfied. This witness no doubt deposed about several of the details relating to the title deeds and the verification thereof and he was also cross-examined at length. DW.3, a resident of Achampet. He is the natural brother of the 1st defendant, who had gone in adoption. No doubt he had deposed about 1st defendant getting the property under a Will from his father and sale of the property by defendant No.1 for discharge of debts and other particulars. In substance this witness had supported the version of DW.1. DW.4 worked as V.M. of Koppavaram and this witness also deposed that 1st defendant is his elder brother and all the properties of his father are self- acquired properties, but the disputed land belongs to the 1st defendant. Certain other facts had been narrated, which would no doubt support the version of DW.1. DW.5 was the in-charge V.K. of Sarpavaram, who had deposed about PW.1 purchasing the property and after one month DW.1 and PW.1 coming to him for getting the land measured and other particulars. This witness was cross- examined and he had denied certain suggestions. DW.6 deposed about the execution of Will by Veeranna and this witness attesting the same. Ex.A16 is the Photostat copy of the original Will, in which he had signed as attestor and Veeranna was in a sound and disposing state of mind at the time of execution of the Will.

On appreciation of this evidence, certain findings had been recorded by the learned Judge and had ordered the refund of the amount with interest. It is no doubt true that there is some evidence placed on record to show that the transaction in fact is a bona fide transaction and the 1st defendant bonafidely offered the sale of the property in question to the plaintiff. If the exchange of notices are to be taken into consideration, it is but natural when one of the natural brothers of the 1st defendant issued a notice, PW.1 would have called upon the 1st defendant to give an explanation to the said controversy. The issue does not stop there. Not only the 1st defendant was unable to clarify the situation, but the other natural brother Nageswara Rao also in a way supported the stand taken by his other brother Ranga Rao by virtue of a notice and it is also not in serious controversy that certain litigations also cropped up in this regard. When there is a cloud over the title created by certain controversies, the plaintiff, as purchaser, is not bound to purchase the risk or further probe into other serious questions. It may be that initially PW.1 might have taken the assistance of the Advocate and might have verified and may be that he was satisfied at a particular point of time about the prima facie title of the 1st defendant, but some unforeseen events appear to have happened subsequently by virtue of the issuance of notice by one natural brother and yet another natural brother asserting the said stand taken by the other natural brother, thus virtually claiming the relief of partition over the property in question. This Court is at a loss to understand what would constitute the cloud over the title or doubt over the title if these claims cannot be taken to constitute such doubt in the mind of PW.1. Even if the sequence of events are carefully scrutinized, at the earliest point of time a demand was made by PW.1 calling upon DW.1, the 1st defendant, to clarify the situation. The dates of the relevant notices also appear to be crucial in appreciating whether the stand taken by the 1st defendant that for want of funds, the plaintiff had avoided the transaction, can be said to be justified. Even to show that PW.1 was ready and willing to perform his part of contract and had sufficient funds, some bank transactions and also the ledger accounts had been placed before this Court. This question need not be so seriously considered especially in the light of the fact that at the earliest point of time, even before the expiry of the stipulated date specified in Ex.A1, notices had been issued and a clarification was called for in this regard. Hence, viewed from any angle, the findings recorded by the learned Judge cannot be found fault with. Accordingly the said findings are hereby confirmed. POINT NO.2:

In the light of the findings recorded above, this Court does not see any reason whatsoever to disturb the findings recorded by the learned Judge and it is needless to say that the appeal being devoid of merit, the same shall stand dismissed with costs.