THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.58 of 2005 January 22, 2014 Between:
Yeddula Subbamma, W/o.Maddulety AND Vaduru Thirupathamma, W/o.Somanna And others … Appellant/ Plaintiff … Respondents/ Defendants THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.58 of 2005 JUDGMENT:
This second appeal is preferred by the plaintiff challenging the decree and judgment dated 21.7.2003 in A.S.No.35 of 1994 on the file of Additional Senior Civil Judge (Fast Track Court), Nandyal, reversing in appeal the decree and judgment dated 31.8.1994 in O.S.No.499 of 1988 on the file of Principal District Munsif Court, Nandyal. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the suit.
2. The case of the plaintiff is that the defendant Nos.1 and 2 entered into an agreement with the plaintiff agreeing to sell the property admeasuring Ac.0.2¾ cents in survey No.1151/B of Nandyal Town (hereafter suit schedule property) for a consideration of Rs.12,000/- and received advance amount of Rs.10,000/- and executed registered agreement of sale dated 08.9.1986. As per the terms of agreement, defendant Nos.1 and 2 have agreed to execute sale deed in favour of plaintiff within two years after receiving the balance sale consideration of Rs.2,000/-. Defendant Nos.1 and 2 mortgaged the suit schedule property to one Chinna Papanna for an amount of Rs.4,000/- on 17.9.1984. After receipt of advance consideration from plaintiff, defendant Nos.1 and 2 have discharged the mortgage debt and redeemed the suit schedule property on 08.9.1986 from Chinna Papanna. As the defendant Nos.1 and 2 did not turn up for executing sale deed by receiving balance sale consideration, plaintiff has issued legal notice dated on 08.8.1988 calling upon defendant Nos.1 and 2 to execute registered sale deed in his favour after receiving balance sale consideration. Defendant Nos.1 and 2 have issued reply notice on 18.8.1988 stating that they have no title over the suit schedule property and refused to execute registered sale deed. The suit schedule property originally belonged to one Somanna, who had executed registered gift deed dated 08.7.1974 in favour of defendant Nos.1 and 2. The plaintiff is ready and willing to perform his part of the contract. During the pendency of suit, defendant Nos.3 to 6 have come on record by filing petition under Order I Rule 10 of CPC. Hence, the suit for specific performance of agreement of sale dated 08.9.1986.
3. Defendant Nos.1 and 2 remained ex parte. Defendant Nos.3 to 6 filed common written statement inter alia contending that suit schedule property originally belonged to Somanna, who executed registered gift deed dated 08.7.1974 in favour of defendant Nos.1 and 2. As per the recitals of the gift deed, first defendant has only limited right over the plaint schedule property and she has no authority to alienate the same. During the life time of first defendant, second defendant has no possession or title over the suit schedule property. After the life time of first defendant, defendant Nos.2 to 6 would become absolute owners of suit schedule property with equal rights. The suit is not maintainable against defendant Nos.3 to 6 as they are not parties to the agreement of sale. The suit is not file within the period of limitation. The plaintiff knowing fully well execution of gift deed dated 08.7.1974 entered into agreement of sale in collusion with defendant Nos.1 and 2. Hence the suit is liable to be dismissed.
4. Basing on the rival contentions, the trial court framed the following issues.
1. Whether the first defendant and second defendant have power to alienate the suit property?
2. Whether the sale agreement dated 08.9.1986 is binding on defendants 3 to 6?
3. Whether the defendants 3 to 6 are not necessary parties to the suit?
4. Whether the suit is barred by time against defendants 3 to 6?
5. To what relief?
5. The trial court, by judgment dated 31.8.1994, decreed the suit. Feeling aggrieved, defendant Nos.3 to 6 preferred the appeal and the same was allowed. Hence, the plaintiff filed this second appeal.
6. The following substantial questions are urged in this appeal.
1. Whether the appellate court is right in discussing about the title of defendants 1 and 2 and their right to sell the property when the issue involved in the suit predominantly is as to whether the defendant Nos.1 and 2 have committed breach of agreement of sale Ex.A2 and as to whether the specific performance of the agreement of the sale has to be ordered in favour of the plaintiff?
2. Whether the appellate court has not committed an error in reversing the trial court’s judgment and decree once after holding that the registered agreement of sale dated 08.9.1986 is true and valid?
7. Heard Sri P.Veera Reddy, learned counsel for the appellant/plaintiff and Sri M.Ram Mohan, learned counsel for the respondent Nos.1 to 6/defendant Nos.1 to 6.
8. To substantiate the case of plaintiff, Y.Maddulety, who is the husband and GPA of plaintiff, examined himself as P.W.1 and got marked Ex.A1 to A7. P.W.2 was examined to prove that defendant Nos.1 to 6 have been residing under the same roof.
P.W.3 is the scribe of Ex.A2 agreement of sale dated 08.9.1986 and Ex.A4 registered discharge deed of mortgage dated 08.9.1986. P.W.4 is one of the attestors of Ex.A2. To demolish the case of plaintiff, third defendant examined herself as D.W.1.
Point Nos.1 and 2:
9. The entire case revolves around Ex.A2 agreement of sale and Ex.A7 gift deed dated 08.7.1974. Hence I am inclined to address the substantial questions of law simultaneously in order to avoid recapitulation of facts.
10. The oral testimony of P.Ws.1 to 4 and D.W.1 clearly reveals that suit schedule property originally belonged to one Somanna, who had executed Ex.A7 gift deed dated 08.7.1974 in favour of defendant Nos.1 and 2. It is not in dispute that defendant Nos.1 and 2 have mortgaged suit schedule property in favour of Chinna Papanna under Ex.A3 mortgage deed dated 17.9.1984 and discharged the same on 08.9.1986 vide Ex.A4. Defendant Nos.1 and 2 have executed Ex.A2 agreement of sale dated 08.9.1986 in favour of plaintiff. Defendant Nos.1 and 2 have discharged mortgaged debt after receipt of advance sale consideration of Rs.10,000/- from plaintiff. The parties have exchanged legal notices, Ex.A4 and Ex.A5, prior to filing of the suit.
11. Section 20 of Specific Relief Act confers discretionary power on the court either to grant or reject the relief of specific performance. Such discretion should be exercised judiciously and strictly adhering to sound principles of law, while keeping in mind the equities. Let me consider the findings of the courts below in the light of the above legal principles. I am fully agreeing with the concurrent findings of the courts below that the agreement of sale dated 08.9.1986 is true and correct.
12. The trial court, after considering the material available on record, held on issue No.3 that the agreement of sale dated 08.9.1986 is binding on defendant Nos.3 to 6 whereas the first appellate court gave diametrically opposite finding. The finding of trial court that restriction of alienation incorporated in Ex.A7 gift deed hit by Section 10 of Transfer of Property Act is also reversed by the first appellate court. It is not in dispute that first defendant is wife and second defendant is niece of Somanna. Defendant Nos.3 to 6 are the children of second defendant. Admittedly, defendant Nos.3 to 6 are not parties to Ex.A2 agreement of sale. As seen from the record, defendant Nos.3 to 6 came on record by filing an application under Order I Rule 10 of CPC. It is not in dispute that Somanna Executed Ex.A1 settlement deed creating life interest in favour of first defendant and vested remainder in favour of second defendant.
13. The crucial question that falls for consideration is whether defendant Nos.3 to 6 are entitled for share in the schedule property by virtue of Ex.A7 gift deed or not. For better appreciation of rival contentions, it is apposite to extract the relevant portion in Ex.A7 gift deed.
“ 1వ సం త లం ఉం వర న క ర క ము గుత ల చు అ! రము " ం# $త హ &ల' అనుభ ం)న తదుప6 2వ సం -./న పరచు ల0 1మ 2వ సం యునుJ , ;;J< 6 ;;J< రసులునుJ న క స 5. ! రములు క 6 అ నుభ ంచు 7 నవల 8 న .”
The trial court in page-6, para 10 of its judgment observed, “… clear reading of Ex.A7 shows that after the life time of D1 property vests absolutely in D2. The word her successor is (sic successors are) used after the name of D2 only in general terms.” It is axiomatic that the court shall not substitute its opinion to the words used in the document, while interpreting the same. The plain, ordinary meaning of the words used is to be adopted in construing a document. In the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument.
14. The courts below have interpreted the above extracted portion in different ways and gave diametrically opposite findings. A perusal of the extract portion clearly manifests that the donor bequeathed the suit schedule property to second defendant and her heirs with absolute rights including the right of alienation of any nature. If really, the donor has no intention to create vested remainder in favour of heirs of second defendant, there is no need to mention the words “;;J< 6 ;;J< రసులునుJ” in the deed. The court has to interpret the word in a document in the context it is being used.
15. It is needless to say that minor’s property shall not be alienated by his or her natural guardian, without previous permission of the court, in view of Section 8(2)(a) of Hindu Minority and Guardianship Act, 1956. According to Section 8(3), any disposal of immovable property by a natural guardian, in contravention of sub-section (2), is voidable at the instance of the minor or any person claiming under him. Admittedly, second defendant or her husband being natural guardians of defendant Nos.3 to 6 have not obtained prior permission of the court to alienate the suit schedule property. Therefore, the suit agreement entered into by second defendant along with first defendant is detrimental to the interest of minors i.e., defendant Nos.3 to 6. The trial court has, without considering the legal rights of defendant Nos.3 to 6, held that Ex.A2 agreement of sale is binding on them. The said finding is not based on sound principles of law, therefore legally not sustainable. Viewed from legal or factual aspects, Ex.A2 agreement of sale is not enforceable against defendant Nos.3 to 6. The first appellate court rightly reversed the said finding of trial court holding as follows “The trial court found that D-2 is vested remainder holder with absolute rights and that the word “heirs” was formally used in the document and brushed aside the argument advanced on behalf of D-3 to D-6 and hence that finding of the trial court is liable to be set aside.” The defendant Nos.3 to 6 are having absolute right over the suit schedule property as on the date of execution of Ex.A2 agreement of sale.
16. The first appellate court basing on the following portion in Ex.A7 “ఈ aశల ;ౖన =ం ము>?@ AంటుC గల భూ$ 5�న అరం ఈ ఆ�...:o LJOనముTT ఇవcSడ;;3, ౖనa” made an observation, in para – 18 of its judgment, that “Under Ex.A7, the donor gifted half of 2¾ cents jointly to D-1 for life and D-2 and her L.Rs with absolute rights after the death of D-1”. A perusal of the entire portion gives a different meaning to the word, “అరం ”. The word “అరం ” is incorporated in the document at that particular place to indicate the purpose for which the document was executed. The first appellate court misinterpreted the word “అరం ”. Therefore the finding of the first appellate court is not legally sustainable so far as this aspect is concerned.
17. Section 10 of the Transfer of Property Act comes into operation if there is absolute condition restraining transferee or any person claiming under him from parting with or disposing of his interest in the property alienated. The donor under Ex.A7 bequeathed the suit schedule property to second defendant and her heirs with absolute rights which includes right of parting with property or alienation. The trial court misconstrued Section 10 and recorded the finding that defendant Nos.1 and 2 have power to alienate the suit property. Therefore, the finding of the trial court cannot be legally sustained.
18. In the light of the foregoing discussion, I have no hesitation to hold that the first defendant being a life estate holder has no right to alienate the property; defendant Nos.3 to 6 have acquired right over the suit schedule property under Ex.A7 gift deed; second defendant has no power to alienate suit schedule property without obtaining prior permission of the court on behalf of defendant Nos.3 to 6; Ex.A2 agreement of sale is not binding on defendant Nos.3 to 6 as they are not parties to it; and the suit is liable to be dismissed. There are no reasons to interfere with the findings of the first appellate court. There is no question of law much less substantial question of law in this appeal.
19. In the result, the second appeal is dismissed, confirming the decree and judgment dated 21.7.2003 in A.S.No.35 of 1994 on the file of Additional Senior Civil Judge (Fast Track Court), Nandyal. There shall be no order as to costs.
20. The miscellaneous petitions if any pending in this second appeal shall stand closed.
(T.SUNIL CHOWDARY, J) 22nd January, 2014.
YS