IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No. 164 of 1995 DATE: .06.2014 Between:
Donthamsetty Narayana Setty … Appellant And Konda Kanthamma (Died) & others.
… Respondents This Court made the following:
THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No. 164 of 1995
JUDGMENT:
The un-successful plaintiff in O.S.No.15 of 1985 on the file of the Subordinate Judge, Nellore, preferred this appeal against the impugned decree and judgment dated 04.11.1994. The appellant is the plaintiff and the respondents are the defendants and they are hereinafter referred to as plaintiff and defendants for convenience.
The plaintiff filed the suit for specific performance of agreement of sale dated 27.12.1984 alleging that he purchased a house site, which is described in schedule annexed to the plaint, under the said agreement for Rs.33,500/- and took delivery. On the date of agreement, the plaintiff paid advance of Rs.1,000/- while agreeing to pay balance of sale consideration on or before 28.02.1985 and obtained regular sale deed from the 1st defendant. Subsequently, on 01.01.1985, the plaintiff paid a further sum of Rs.2,500/- to the 1st defendant and obtained an endorsement on the reverse of the agreement of sale. The plaintiff is always ready and willing to pay balance of sale consideration and made a request to the 1st defendant to receive the same and execute registered sale deed, but the 1st defendant did not cooperate to do so.
The plaintiff, having no other alternative, got issued legal notice dated 15.02.1985 to the 1st defendant demanding her to receive balance of sale consideration and execute registered sale deed, but the 1st defendant did not issue any reply and on the other hand her sons got issued a reply claiming that they are having equal right along with the 1st defendant in the schedule property and denied 1st defendant’s absolute ownership and competent to sell the schedule property. Thereupon, the plaintiff sent a reply to the notice sent by the sons of the 1st defendant on 18.02.1985 almost reiterating the contentions raised in the original notice dated 15.02.1985 accepting that the 1st defendant alone is the absolute owner. Thus the 1st defendant with ulterior motive and in collusion with her children got issued notice dated 15.02.1985.
The plaintiff is always ready and willing to perform his part of contract and deposited balance of sale consideration in the State Bank of Hyderabad, Fathekhanpet Branch, and informed the same to the 1st defendant by telegram dated 23.02.1985. However, the 1st defendant failed to perform her obligation under the agreement of sale. Therefore, the plaintiff was constrained to file the present suit claiming relief of specific performance of agreement of sale.
The 1st defendant filed written statement admitting purchase of the property originally by her under registered sale deed dated 14.11.1981, and her continuous possession and enjoyment of the same along with her children, but the consideration under the said sale deed was emanated from the sale proceeds of her ancestral property situated at Panchedu village of Kovur Taluk. Hence, she is not the absolute owner of the property and her children are also having equal share in it. The 1st defendant, her sons and daughter, Bharatha Lakshmi being minor represented by guardian and mother Lakshmi Kanthamma, sold their ancestral land in Panchedu village for a sum of Rs.12,250/- under a registered sale deed dated 12.08.1981 to one Gaddam penchala Reddy, s/o. Yanadireddy of Panchedu village, Kovur Taluk and from the said sale proceeds the 1st defendant and her sons purchased the schedule property in the name of the 1st defendant.
The 1st defendant further contended that the plaintiff insisted her to execute an agreement of sale in his favour assuring that he will convince her children and prevail upon them to execute a registered sale deed in his favour. Believing the representation of the plaintiff, she executed agreement of sale and requested her sons to join with the execution of the regular registered sale deed in favour of the plaintiff, but they refused to do so. The said fact was informed to the plaintiff by the 1st defendant but kept quiet and that there was exchange of notices between the plaintiff, herself and her children regarding the suit transaction of agreement of sale. Finally, it was contended that agreement of sale is not enforceable in view of the bar under Section 17 of the Specific Relief Act, 1963 (for short, “the Act”), as the 1st defendant alone is not having absolute title to the schedule property and prayed for dismissal of the suit.
Basing on the above pleadings, the trial Court framed the following issues:
1. Whether the plaint scheduled is not the absolute property of the defendant?
2. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 27.12.1984?
3. To what relief?
While the matter stood thus, the children of the 1st defendant filed I.A.No.212 of 1986 under Order I Rule 10 of CPC to implead them as parties to the suit. The said petition was allowed and they were impleaded as parties to the suit. Defendant Nos.2 to 5 filed their written statement contending that the schedule property was purchased in the name of the 1st defendant with the sale proceeds of joint family agricultural land at Panchedu to Gaddam Penchala Reddy, s/o. Yanadireddy for Rs.12,250/- on 12.08.1981. Therefore, the 1st defendant has no right to alienate the share of defendant Nos.2 to 5 and agreement dated 27.12.1984 executed by the her in favour of the plaintiff is not valid and binding on them and finally prayed to dismiss the suit.
The 1st defendant died during the pendency of the suit. Defendant Nos.2 to 5, who are the legal heirs of the 1st defendant, filed memo in to the Court informing the death of the 1st defendant and the said memo was recorded. Thereafter, the issues were recasted as follows:
1. Whether D1 is the absolute owner of the suit property, if so, whether the sale agreement dated 27.12.1984 executed by D1 in favour of the plaintiff is true, valid and binding on D2 to D5 and if so, whether the plaintiff is entitled for the relief of specific performance of the said agreement?
2. To what relief?
As the matter stood thus, the plaintiff filed I.A.No.153 of 1992 to implead the 6th defendant as party to the suit contending that during the pendency of the suit, the 6th defendant purchased the share of defendant Nos.3 and 4 in the plaint schedule property under registered sale deed dated 15.04.1991 to defeat the rights of the plaintiff. The said petition was allowed and the 6th defendant was impleaded as party to the suit.
The 6th defendant filed written statement contending that he purchased the share of defendant Nos.3 and 4 under registered sale deed dated 15.04.1991 for a sum of Rs.22,000/-. Thus, he is not aware of pendency of any suit regarding the schedule property and therefore he is a bona fide purchaser for valid consideration. It is further contended that when defendant Nos.3 and 4 tried to interfere with the possession and enjoyment of the 6th defendant, he filed a suit being O.S.No.283 of 1991 and obtained a decree on 17.07.1992. Thus, he is entitled to claim title over the share of defendant Nos.3 and 4 and prayed to dismiss the suit.
The trial Court, basing on the written statement filed by the 6th defendant, framed the following issue:
Whether the 6th defendant is a bonafide purchaser for valuable consideration?
During the course of trial, on behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A1 to A6 were marked. On behalf of the defendants, DWs.1 and 2 were examined and Ex.B1 was marked.
Upon hearing the argument of the counsel on record, the trial Court declined to grant relief for specific performance on two grounds, namely;
(1) the plaintiff failed to establish his readiness and willingness to perform his part of obligation, and
(2) the 1st defendant is not the absolute owner of the property since the same was purchased with the sale proceeds of joint family property at Panchedu in favour of Gaddam Penchala Reddy under registered sale deed.
Aggrieved by the impugned decree and judgment of the trial Court, the un-successful plaintiff preferred the present appeal on various grounds.
The main contentions raised in the grounds of appeal are as follows:
a) The trial Court did not consider the admission regarding execution of Ex.A1, agreement of sale, by the 1st defendant, after receiving advance sale consideration thereunder.
b) The trial Court also did not appreciate the evidence on record regarding readiness and willingness of the plaintiff to perform his part of obligation. Deposit of balance of sale consideration in a nationalized bank itself is sufficient to establish that the plaintiff is ready and willing to perform his part of obligation.
c) The Trial Court did not consider the admission of DWs.1 and 2 regarding payment of share to each defendant out of the sale proceeds of agricultural land and committed an error in dismissing the suit;
and finally prayed to allow this appeal against the impugned decree and judgment of the trial Court.
During the course of hearing, the learned counsel for the appellant Sri P.Sridhar Reddy contended that when the 1st defendant herself purchased the property under Ex.A6, registered sale deed, and is in possession and enjoyment of the same, she alone is the absolute owner of the property and her children have no right or interest in it, and that dismissal of the suit on the ground that the 1st defendant alone is not the absolute owner is against the settled principles of law.
It is further contended that the conclusions arrived at by the trial Court that the plaintiff is not ready and willing to perform his part of contract is without any basis and it is erroneous on the face of record for the reason that the plaintiff himself deposited the balance of sale consideration in the State Bank of Hyderabad, Fathekhanpet Branch and gave intimation through telegram to the 1st defendant. This itself is sufficient to conclude that the plaintiff is always ready and willing to perform his part of obligation under the agreement of sale, but the trial Court, without appreciating the facts in proper perspective, committed an error and finally prayed to set aside the impugned decree and judgment and pass a decree infavour of the plaintiff granting relief of specific performance of agreement of sale dated 27.12.1984.
Though the defendants were represented by a senior Advocate Sri Vedula Venkataramana, he did not advance any argument to support the judgment of the trial Court. Having no other alternative, this Court posted the matter for pronouncement of judgment after affording reasonable opportunity to the Advocate for the defendants for arguing the matter.
Considering the contentions of the counsel for the plaintiff/appellant, perusing the impugned decree and judgment and the oral and documentary evidence on record, the points that arise for consideration are as follows:
1) Whether the 1st defendant alone is the absolute owner of the property, if not, is she competent to enter into the agreement of sale with the plaintiff marked as Ex.A1 and sell the entire schedule property.
2) Whether the plaintiff is always ready and willing to perform his part of obligation under agreement of sale?
3) Whether the plaintiff is entitled to decree of specific performance of agreement of sale dated 27.12.1984?
POINT No.1.
The undisputed facts of this case are purchase of the property by the 1st defendant under Ex.A6, dated 14.11.1981 and receiving advance sale consideration of Rs.1,000/- on 27.12.1984 from the plaintiff so also an amount of Rs.2,500/- and endorsing the same on the reverse of the agreement of sale marked as Ex.A1 and Ex.A2 respectively. There is lot of registered correspondence between the plaintiff and the children of the 1st defendant i.e., defendant Nos.2 to 5. Thus, the undisputed fact is purchase of the property by the 1st defendant and execution of Ex.A1, agreement of sale, and Ex.A2, endorsement. Though the 1st defendant admitted execution of Exs.A1 and A2, denied her ownership over the property while contending that the sale consideration paid under Ex.A6 is emanated from the sale proceeds of agricultural land at Panchedu village and the original of Ex.B1 by the 1st defendant and her children thereby the 1st defendant alone is not the owner of the property and her children are also having equal share along with the 1st defendant thereby denied the liability to execute a registered sale deed in favour of the plaintiff for the shares of defendant Nos.2 to 5. Defendant Nos.2 to 5 also raised the same contention. Therefore, I need not repeat the specific contentions of defendant Nos.2 to 5.
The trial Court, after appreciation of oral and documentary evidence, concluded that the sale consideration under Ex.A6 was paid out of the sale consideration received under the original of Ex.B1 from Penchala Reddy, s/o. Yanadireddy by sale of joint family property belonging to defendant Nos.1 to 5 and consequently the 1st defendant is competent to enter into an agreement of sale only in respect of her 1/5th share, but not competent to enter into a contract in respect of the shares of defendant Nos.2 to 5 and declined to grant the relief of specific performance. In view of this specific contention raised in the grounds of appeal and the arguments advanced by the counsel, this Court, being the Court of first appeal, is under the obligation to appraise the entire evidence available on record to come to an independent conclusion, notwithstanding the finding recorded by the trial Court. Therefore, I would like to re-appraise the entire oral and documentary evidence to come to an independent conclusion.
In view of the specific contentions of defendant Nos.1 to 5 the schedule property was purchased with the part of sale proceeds received by them under the original of Ex.B1, however, admitted about obtaining registered sale deed for the schedule property in the name of the 1st defendant under original of Ex.A6 nominally. PW.1 is the plaintiff whose evidence is consistent with regard to the ownership of the 1st defendant. He asserted that the 1st defendant alone is the absolute owner of the schedule property, as the document was obtained in her name. PWs.2 and 3 were examined only to prove execution of Exs.A1 and A2, but their evidence is not relevant for deciding the present controversy with regard to the ownership of the 1st defendant.
To substantiate the contentions of the defendants, the 2nd defendant was examined as DW.1. In his examination-in-chief, he asserted that the suit schedule property was purchased with the sale consideration received by them from Penchala Reddy under Ex.B1 by sale of joint family property. In the cross-examination, he pleaded ignorance about the sale consideration received under original of Ex.B1, but asserted that they sold Ac.1.75 cents of joint family property to Penchala Reddy at Penchedu village in the year 1981 and thereafter, purchased the schedule property with the said sale proceeds. A suggestion was put to DW.1 that the 1st defendant is the absolute owner of the schedule property and got denied of it. However, it is elicited in the cross-examination that defendant Nos.1 to 5 were in possession of the schedule property for the last seven years even prior to obtaining Ex.A6, registered sale deed, as tenants and after purchase under Ex.A6 they became owners of the property.
The 6th defendant, w/o. DW.1, was examined as DW.2. According to her, she purchased the share of defendant Nos.3 and 4 for sale consideration of Rs.22,000/- and obtained registered sale deed about three years back, but this piece of evidence at best helpful to prove that defendant No.6 is the bona fide purchaser for valuable consideration.
In any view of the matter, it is clear from the evidence adduced by both parties in respect of the specific pleas that no other independent witness was examined to prove the contentions of the defendants that the schedule property purchased under original of Ex.A6 was with the sale proceeds covered by original of Ex.B1. However, the recitals of the documents marked as Ex.B1 and Ex.A6 are relevant for deciding the real controversy between the parties. The recitals of Ex.B1 at page No.3, copy of registered sale deed, discloses that the property sold under Ex.B1 is not convenient for cultivation by defendant Nos.1 to 5 and thereby intended to sell the same with an intention to purchase house and house site at Nellore. Thus, the purpose of sale of joint family property under the original of Ex.B1 is to purchase house and house site at Nellore and the total consideration received by them under the original of Ex.B1 is Rs.12,250/-. Whereas Ex.A6, certified copy of registered sale deed, obtained in the name of the 1st defendant was for Rs.4,500/-.
If total consideration paid under the original of Ex.B1 is divided among defendant Nos.1 to 5, each of the defendants would get Rs.2,450/-, but whereas the value of the sale consideration paid under Ex.A6 was Rs.4,500/- and that apart there is no independent evidence to establish that the 1st defendant has got independent source of income to meet the sale consideration paid under the original of Ex.A6. Ex.B1 was executed on 12.08.1981 and Ex.A6 was obtained on 14.11.1981. Thus, the suit schedule property was purchased within two months after sale of the joint family property under the original of Ex.B1 and there is nothing on record to establish that the 1st defendant has got any independent source of income to pay the sale consideration covered by Ex.A6. In the absence of proof of any independent source of income and basing on the recitals of Ex.B1, more particularly, regarding performance of sale of the property it can safely be concluded that the suit property was purchased with the sale proceeds of joint family property received under the original of Ex.B1.
One of the contentions raised during the course of argument and as well as in the grounds of appeal is that DW.2 admitted that sale proceeds under Ex.B1 were distributed among her mother-in-law, husband and his brothers. A stray admission in the evidence of DW.2 would not go to the root of the case and even if it is distributed among defendant Nos.1 to 5, payment of sale consideration with the sale proceeds of Ex.B1 is not disputed. Admission of DW.2 is of no evidentiary value and she has not supposed to know about the said distribution of sale proceeds. If it is an admission by DW.1 it is crucial aspect to decide the legality in the plea raised by the defendants with regard to purchase of property. Therefore, the trial Court rightly ignored the alleged admission made by DW.2 with regard to distribution of sale proceeds covered by the original of Ex.B1 and such admission is not expected from DW.2 who is unconcerned with the distribution of sale proceeds among defendant Nos.1 to 5.
On over all consideration of entire material available on record, I find no error or perversity in the finding recorded by the trial Court. Therefore, I hold that the schedule property was purchased by defendant Nos.1 to 5 in the name of the 1st defendant with the sale proceeds covered by the original of Ex.B1 for the reason that the 1st defendant has no independent source of income to pay the sale consideration under original of Ex.A6. Hence, the finding of the trial Court is hereby confirmed holding that defendant Nos.1 to 5 are having equal share in the schedule property.
Accordingly, the point is decided in favour of the defendants and against the plaintiff.
POINT No.2.
One of the contentions raised by the defendants is that the plaintiff is not ready and willing to perform his obligation thereby he is not entitled to claim relief of specific performance.
Though the plaintiff pleaded that he is always ready and willing to perform his part of obligation under agreement of sale – Ex.A1, he has to establish the said plea by adducing satisfactory and cogent evidence. Since it is obligatory on the plaintiff to plead and prove that he is always ready and willing to perform his part of obligation, as required under Section 16(c) of the Act, compliance of the said Section is mandatory to claim the relief of specific performance.
To decide readiness and willingness of the plaintiff it is my duty to advert to the oral evidence of PW.1 and the terms and conditions of Ex.A1, agreement of sale. According to the evidence of PW.1, he purchased the property for sale consideration of Rs.33,500/- under Ex.A1, paid an amount of Rs.1,000/- on the same day while agreeing to pay the balance of sale consideration on or before 28.02.1985. The same is evidenced by Ex.A1. Thus, as per the terms and conditions of agreement, the balance of sale consideration has to be paid on or before 28.02.1985 and the 1st defendant has to execute registered sale deed on the same day. The plaintiff further testified that he was ready with the balance of sale consideration and demanded the 1st defendant to receive the same and execute registered sale deed. He also got issued Ex.A3, registered notice dated 15.02.1985, calling upon the 1st defendant to receive balance of sale consideration and execute registered sale deed, but the 1st defendant did not comply the legitimate demand of the plaintiff. On the other hand, she got issued reply through her children claiming that they are joint owners of the schedule property along with the 1st defendant. Ex.A3 was issued on 15.02.1985, whereas the balance of sale consideration is agreed to be paid on 28.02.1985. Thus, demand was made on 15.02.1985 for execution of the registered sale deed by the 1st defendant, receiving balance of sale consideration expressing his readiness and willingness to perform his part of obligation. On the other hand, the balance of sale consideration was deposited in the State Bank of Hyderabad, Fathekhanpet Branch, and intimated the same to the plaintiff by telegram dated 23.02.1985. The conduct of the plaintiff in issuing Ex.A3, notice, and Ex.A5, original of telegram, clearly indicate that he possessed sufficient money to pay the balance of sale consideration. If really the plaintiff has no intention to perform his part of obligation under Ex.A1, he would not have demanded the 1st defendant to receive balance of sale consideration and execute registered sale deed by issuing Ex.A3. The readiness and willingness pleaded in Ex.A3 is further strengthened by Ex.A5, telegram. The delay in payment of balance of sale consideration was only due to the denial of the 1st defendant to execute registered sale deed. However, she received Rs.2500/- under Ex.A2 as part of sale consideration on 01.01.1985. All these circumstances cumulatively establish that the plaintiff is always ready and willing to perform his part of obligation under Ex.A1 i.e., for payment of balance of sale consideration to obtain registered sale deed, but for non-cooperation of the 1st defendant registered sale deed could not be obtained.
To decide the readiness and willingness of the plaintiff the conduct of the plaintiff has to be looked into.
In the instant case on hand the conduct of the plaintiff would go to show that he is always ready and willing to perform his part of obligation. Issuing notice even before the amount become due as agreed under Ex.A1 and depositing balance of sale consideration in the State Bank of Hyderabad, Nellore, intimating the same by sending Ex.A5 clearly tantamount expressing his readiness and willingness to perform his part of obligation under Ex.A1, agreement of sale. Therefore, the voluminous evidence on record established that the plaintiff is always ready and willing to perform his part of obligation under Ex.A1. The Trial Court though considered the evidence on record, obviously, on erroneous appreciation of evidence, erroneously concluded that the plaintiff failed to establish his readiness and willingness, as required under Section 16(2) of the Act. If the evidence of the plaintiff on record along with documentary evidence is appreciated in proper perspective, the trial Court would not have arrived at such conclusion. Thus, committed an error in holding that the plaintiff failed to establish his readiness and willingness to perform his part of obligation. Hence, the finding of the trial Court is hereby set aside holding this point in favour of the plaintiff and against the defendants.
POINT No.3.
One of the major contentions of the defendants is that defendant Nos.2 to 5 are entitled to equal share along with the 1st defendant in the schedule property, as the same was purchased by the sale proceeds covered by the original of Ex.B1. According to my finding on point No.1, the schedule property under Ex.A6 was purchased with the sale proceeds covered by the original of Ex.B1 by sale of ancestral property belonging to Hindu undivided joint family property. Though the sale deed was obtained nominally in the name of the 1st defendant, she alone will not become absolute owner, but she is only a nominal owner and whereas the other defendants are joint owners along with the 1st defendant. At best, the 1st defendant is entitled to 1/5th share in the entire schedule property and the other defendants i.e., defendant Nos.2 to 5 are entitled to 1/5th share each. But the 1st defendant has executed Ex.A1, agreement of sale for the entire schedule property purchased under the original of Ex.A6 though she is not the absolute owner. Thus, she is incompetent to enter into an agreement on behalf of her children, who are the joint owners along with her and majors by then, thereby the agreement of sale is not enforceable against the share of defendant Nos.2 to 5. At best, the plaintiff may obtain sale deed in respect of 1/5th undivided share of the 1st defendant. Hence, the agreement of sale marked as Ex.A1 is not enforceable against defendant Nos.2 to 5.
Section 17 of the Act says that contract to sale or let property by one who has no title, not specifically enforceable. A person, who, knowing not to have any title to the property, has contracted to sell or let the property or who, though he entered into a contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the Court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.
From the language used in Section 17 of the Act, agreement of sale entered into with the 1st defendant, who has no title to the property, is not enforceable against her. But, Section 9 of the Act permits the 1st defendant to raise certain defences which are permissible under Indian Contract Act. Lack of title is not a permissible defence under Section 9 of the Act to the 1st defendant who sold the property under Ex.A1. Therefore, it is not open to the 1st defendant to contend that she has no absolute title to the schedule property claiming that she is only 1/5th shareholder. However, when defendant Nos.2 to 5 came on record they are entitled to raise any plea beyond Section 9 of the Act, as they came on record by filing an application under Order I Rule 10 CPC. Therefore, the bar under Section 9 of the Act will not come in the way of defendant Nos.2 to 5 to raise any plea beyond the scope of Section 9 of the Act. Hence, the agreement of sale marked as Ex.A1 is not enforceable against defendant Nos.2 to 5.
During the pendency of the suit, the 6th defendant, who is the wife of the 2nd defendant, purchased the share of defendant Nos.3 and 4 for valuable consideration and became a tenant in common. Thus, she pleaded that she has no knowledge about the pendency of the suit. The same cannot be believed for the simple reason that her husband is a party to the suit as 2nd defendant. Therefore, her claim that she is a bona fide purchaser for valuable consideration without notice is untenable under law.
Grant of relief of specific performance is purely a discretionary relief under Section 20 of the Act, which is hedged by two exceptions. Moreover, a third party interest is created in favour of the 6th defendant during the pendency of the suit. However, no specific plea regarding the exceptions contained under Section 20 of the Act was raised by any of the defendants and no issue was framed by the trial Court. In any view of the matter, in view of the settled principle of law laid down by the Apex Court in Lourdu Mari David and others Vs. Louis Chinnaya
[1]
Arogiaswamy and others , wherein the Apex Court held as follows:
“It is settled law that the party who seeks to avail of equitable jurisdiction of a Court and specific performance being equitable relief, must come to Court with clean hands. In other words, the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief.”
In the instant case on hand, the plaintiff appears to have approached the Court with knowledge that defendant Nos.2 to 5 are the joint owners along with the 1st defendant and filed the present suit for relief of specific performance against the 1st defendant alone though defendant Nos.2 to 5 claimed equal share along with the 1st defendant in the registered correspondence. Thus, the plaintiff wanted to obtain specific performance of agreement of sale without impleading the persons i.e., defendant Nos.2 to 5, who are claiming equal share along with the 1st defendant, but fortunately they themselves came on record and established that the schedule property was purchased under the original of Ex.A6 with the sale proceeds covered by original of Ex.B5. Thus, it is clear that the plaintiff did not approach the Court with clean hands, but tried to obtain a decree ignoring the rights of defendant Nos.2 to 5 though they asserted that they have got equal share in the schedule property along with the 1st defendant. Therefore, the plaintiff is not entitled to claim equitable discretionary relief of specific performance under Section 20 of the Act.
On an over all consideration of the entire material available on record, it is evident that the plaintiff did not approach the Court with clean hands claiming equitable relief of specific performance and that the 1st defendant, who entered into an agreement of sale, marked as Ex.A1, with the plaintiff without any absolute title over the property, is only a claim lender and in her name the sale deed was obtained by defendant Nos.2 to 5 nominally thereby the agreement of sale is not enforceable in view of Section 17 of the Act. Consequently, the plaintiff is not entitled to claim relief of specific performance and the trial Court has rightly declined to grant relief of specific performance on appreciation of facts on record with reference to law, as such, it committed no error in negating the relief of specific performance of agreement of sale – Ex.A1. Hence, I have no hesitation to uphold the finding of the trial Court, as I find no illegality or perversity in the findings recorded by the trial Court. Accordingly, I am totally in agreement with the findings of the trial Court and consequently the point is held in favour of the defendants and against the plaintiff/appellant.
In view of my findings on point Nos.1 to 3, the appeal is devoid of merits and deserves to be dismissed.
In the result, the appeal is dismissed confirming the impugned decree and judgment dated 04.11.1994 in O.S.No.15 of 1985 passed by the Subordinate Judge, Nellore.
M. SATYANARAYANA MURTHY, J.
Date: .06.2014 ES
[1] AIR 1996 SC 2814