Anumalasetti Sarada v. Velagapudi Rajamma & Ors.

Judgment

This judgment disposes of both A.S.No.470 of 1991 and A.S.No.3175 of 1992.

2. The sole plaintiff before the Senior Civil Judge, Kavali laid the suit for specific performance of agreement of sale dated 29.11.1981 (Ex.A.2). The suit was laid against nine defendants. Defendants 1 to 5 remained ex parte. After a detailed contest, the learned Senior Civil Judge, Kavali decreed the suit against the defendants 1 to 5 granting the alternative relief of refund of ` 10,101/- paid by the plaintiff to the defendants 1 to 5, together with interest at 12% per annum from the date of Ex.A.2 till the date of the suit and at 6% thereafter. A monetary decree at ` 40,000/- was granted in favour of the plaintiff against the defendants 1 to 7 together with interest at 6% per annum from the date of the decree till realization by way of compensation. Before appeals were filed, the sole plaintiff died on 27.12.1990. The wife, two sons and two daughters of the plaintiff filed A.S.No.470 of 1991 seeking for specific performance. The appeal against the third defendant (third respondent in the appeal) was dismissed for default. Although there were nine defendants in the suit, the appeal was laid against the defendants 1 to 7 against whom the trial court granted decree. While the appeal was pending, respondent No.6/defendant No.6 died. Respondent No.8 was brought on record as the legal representative of the defendant No.6/respondent No.6. Subsequently, respondent No.7/defendant No.7 died. Her legal representatives were brought on record as respondents 9 to 14. Consequently, A.S.No.470 of 1991 as it stands today is by appellants 1 to 5 (the legal representatives of the deceased/original plaintiff) and respondents 1 to 14, out of whom the appeal was dismissed against respondent No.3, while respondents 6 and 7 are no more.

3. Defendants 6 and 7 (who are respondents 6 & 7 in A.S.No.470 of 1991) laid A.S.No.3175 of 1992. The appellants in A.S.No.470 of 1991 are arrayed as respondents 1 to 5. Respondents 1 to 5 in A.S.No.470 of 1991 are arrayed as respondents 6 to 10 in A.S.No.3175 of 1992. Indeed, the defendants 6 & 7, who are appellants 1 & 2, are no more. The legal representatives of the appellants filed petitions under Section 5 of the Limitation Act, under Order 22 Rule 9 of the Civil Procedure Code (CPC, for short) to set aside the abatement and under Order 22 Rule 3, CPC to bring them as representatives of the deceased/appellants. As both sides have no objection, these petitions are allowed. The delay in filing the petitions under Order 22 Rule 9 CPC in both the petitions is condoned. The petitions to set aside the abatement are allowed. The abatement of the appeal is set aside. The petitions to bring the petitioners as legal representatives of the deceased/appellants 1 & 2 are allowed. The petitioners are brought on record as legal representatives of the appellants 1 and 2.

4. The primary facts are not in controversy. However, Ex.B.5 dated 30.04.1980 and Ex.A.2 dated

29.11.1981 are the documents over which the dispute primarily revolves.

5. One Velagapudi Venkata Ramaiah along with defendants 6 & 7 jointly purchased a rice mill together with appurtenant side thereto in 1977. The purchases were indeed through separate sale deeds. However, Venkata Ramaiah as well as defendants 6 & 7 purchased undivided 1/3rd shares in each of the sales. They later entered into a partnership deed for running a rice mill under the name and style of M/s. Srinivasa Rice, Oil and Flour Mill. The 8th defendant, who is the son of the 7th defendant, was appointed as the manager of the rice mill.

6. Subsequently, Velagapudi Venkata Ramaiah became a paralytic. It is the case of defendants 1 to 8 that on 30.04.1980, Venkata Ramaiah executed an agreement of sale under Ex.B.5 in favour of defendants 6 & 7 to sell his 1/3rd undivided share to defendants 6 & 7. Venkata Ramaiah statedly received ` 15,000/- towards part consideration. On 04.05.1980, Venkata Ramaiah breathed his last.

7. On 05.05.1980, defendant No.2, one of the sons of Venkata Ramaiah entered fresh partnership agreement with defendants 6 & 7, as he had no alternative but to do so, since his father, who was a partner of the original partnership, died. However, the fresh partnership deed between defendants 2, 6 & 7 was executed on 31.05.1980 (under Ex.B.4), although the agreement was initially entered into on 05.05.1980.

8. The plaintiff contended that there was an agreement of sale in favour of the plaintiff in respect of the share of Velagapudi Venkata Ramaiah under Ex.A.2. The plaintiff contended that by the time Venkata Ramaiah died, the second defendant was studying Medicine at Kurnool and that when defendant No.8 was reentrusted with the business of the rice mill, defendants 8 & 9 started acting more as lessees of the firm while defendant No.8 was the manager of the firm.

9. The plaintiff further contends that as defendants 1 to 5, wife and children of Velagapudi Venkata Ramaiah, were not satisfied with the carrying of the business by defendant No.8 and decided to sell away the 1/3rd undivided share of Venkata Ramaiah and that they offered the same to defendants 6 & 7. It is the case of the plaintiff that defendants 6 & 7 offered ` 1,50,000/- to defendants 1 to 5 on 31.03.1981 as the highest offer by the defendants 6 & 7 for the 1/3rd share of Venkata Ramaiah and that as plaintiff offered to purchase the undivided 1/3rd share of Venkata Ramaiah at ` 1,65,000/-, defendants 1 to 5 executed an agreement of sale on 29.11.1981 under Ex.A.2 and received ` 10,101/- as part consideration.

10. It is the further case of the plaintiff that the plaintiff was to pay the balance of the sale consideration on or before 31.03.1981. The defendants 6 to 8 removed some items of machinery from the premises diminishing the value of the property. The plaintiff nevertheless was willing to purchase the share of Venkata Ramaiah, so much so, defendants 6 & 7 offered ` 1,75,000/- for the property and obtained sale deed subsequent thereto. The plaintiff contended that the alleged agreement of sale under Ex.B.5 by Venkata Ramaiah favour of defendants 6 & 7 was never entered into by Venkata Ramaiah and that the same was created by defendants 6 & 7 to defeat the claim of the plaintiff acquired by the plaintiff, through Ex.A.2 agreement of sale. Aggrieved by the sale of the plaint schedule property constituting 1/3rd undivided share in the properties representing the interest of Velagapudi Venkata Ramaiah, in favour of defendants 6 & 7, the plaintiff laid the present suit seeking for specific performance of Ex.A.2-agreement of sale in favour of the plaintiff. As already pointed out, since the trial court held that Ex.A.2 was true, while Ex.B.5 was false but declined to grant specific performance of Ex.A.2-agreement of sale, A.S.No.470 of 1991 is laid by the legal representatives of

the deceased plaintiff.

11. The primary question whether Ex.A.2 or Ex.B.5 is true falls for consideration. The questions of law such as which out of Ex.A.2 and Ex.B.5 takes precedent over the other if both are true and whether plaintiffs/appellants are entitled to specific performance of the agreement of sale under Ex.A.2 or are merely entitled to compensation in lieu of the agreement of sale also arise for consideration. Whether defendants 6 & 7 are bona fide purchasers without notice is an incidental question which needs to be answered.

12. Sri V. Srinivas, learned counsel for defendants 6 & 7 (appellants in A.S.No.3175 of 1992) submitted that most of the options of various permutations and combinations are in favour of the defendants 6 & 7. One of the options is to accept Ex.A.2 and Ex.B.5 as true. If so, Ex.B.5 being former to Ex.A.2 and also being an agreement of sale entered into by Venkata Ramaiah himself, Ex.B.5 would stand preferred vis-à-vis Ex.A.2.

13. If Ex.A.2 and Ex.B.5 are disbelieved, the sale deeds executed by defendants 1 to 5 in favour of defendants 6 & 7 prevails so much so the plaintiff cannot assail the same. The court may believe Ex.B.5 and disbelieve Ex.A.2. Even then, the sale deeds in favour of defendants 6 & 7 cannot be questioned.

14. The last alternative is believing Ex.A.2 and disbelieving Ex.B.5. It is only in such circumstances, the question whether the plaintiff is entitled to specific performance of the agreement of sale would arise for consideration. I agree with the contention of the learned counsel for defendants 6 & 7 that three of the four options are in favour of defendants 6 & 7 and that only one of the options is in favour of the plaintiff. At any rate, the learned trial judge upheld Ex.A.2 and rejected Ex.B.5 under the assumption that only one amongst Ex.A.2 and Ex.B.5 could be true. Unfortunately, this assumption of the learned trial judge is not correct. There is no bar to assume that Velagapudi Venkata Ramaiah entered into an agreement of sale with defendants 6 & 7 under Ex.B.5 on 30.04.1980 while defendants 1 to 5 entered into an agreement of sale with the plaintiff on 29.11.1981 under Ex.A.2. It is a matter of evidence to accept the rival contentions in this regard, albeit which amongst Ex.A.2 and Ex.B.5 takes precedence is more a question of law if both the agreements are established. The trial court held that Ex.A.2 prevails over Ex.B.5 and presumed that defendants 6 & 7 had knowledge about Ex.A.2. After holding that it was not a fit case for grant of specific relief, the learned trial judge awarded compensation in favour of the plaintiff against not only defendants 1 to 5, but against defendants 6 & 7 as well.

15. The defendants 6 & 7 filed an appeal questioning the compensation granted by the trial court in favour of the plaintiff against defendants 6 & 7 also. Sri U. Muralidhar Rao, learned counsel for the plaintiff and the appellants in A.S.No.470 of 1991 contends defendants 6 & 7 cannot question the finding of the trial court that Ex.A.2 is true and that Ex.B.5 is false on the ground that defendants 6 & 7 did not question that part of the decree.

16. The grounds 1 & 2 of A.S.No.3175 of 1992 are comprehensive enough to include the decree granted by the trial court in favour of the plaintiff on the basis of Ex.A.2 apart from awarding compensation. The learned counsel for the defendants 6 & 7 inter alia contended that Order 41 Rule 22 CPC empowers defendants 6 & 7 to raise all questions albeit defendants 6 & 7 filed the appeal assailing the award of compensation only. Order 41 Rule 22 CPC envisages that a respondent in an appeal may file cross objections and that a respondent, however, can also question that part of the decree, which is against the respondent even without filing appeal or cross-objections. It is the contention of the learned counsel for defendants 6 & 7 that the defendants 6 & 7 are entitled to raise all questions including the truth and validity of Ex.A.2 in their appeal in A.S.No.3175 of 1992 as well as in the appeal of the plaintiff in A.S.No.470 of 1991. He placed reliance u p o n Ravinder Kumar Sharma v. State of Assam [1] support of his contention. M. Jagannadha Rao, J, speaking for the court held in that case that in an appeal by the plaintiff questioning the judgment and decree which are partly in favour of the plaintiff, a defendant can attack the finding of the trial court to the extent of the findings which are against the defendant, although the defendant did not file an appeal or cross objections. I, therefore, am constrained to hold that the defendants 6 & 7 are entitled to question the decree to the extent the decree holds that Ex.B.5 is false and Ex.A.2 is true. In other words, the defendants 6 & 7 are entitled to contest the entire case. I, therefore, shall examine the merits of the case without narrowing down the scope of the contentions of the defendants 6 & 7 in the appeals.

17. As already pointed out, defendants 1 to 5 executed two sale deeds on 24.12.1991 under Exs.A.5 and 6, one sale deed on 25.01.1981 in Ex.A.7 and two sale deeds on 26.12.1981 under Exs.A.8 and 9. These are the sale deeds executed in favour of defendants 6 & 7 by defendants 1 to 5. Inter alia, it is the contention of the learned counsel for the plaintiff that when the defendants executed Ex.A.2-agreement of sale on 29.11.1981 and when they executed sale deeds under Exs.A.5 to 9 shortly thereafter, they ought to have immediately cancelled Ex.A.2-agreement of sale. The suit was laid on

16.01.1982. Admittedly, defendants 1 to 5 did not issue any notice to the plaintiff cancelling Ex.A.2-agreement of sale. It is the contention of the learned counsel for the plaintiff that when Ex.A.2 had not been cancelled by the defendants 1 to 5, Ex.A.2 takes precedence over Ex.B.5. I may recall the earlier statement of the learned counsel for the defendants 6 & 7 and their legal representatives (contesting defendants, for short) that if Exs.A.2 and B.5 are accepted, Ex.B.5 takes precedence over Ex.A.2 as it was former in point of time and also as it was executed by Velagapudi Venkata Ramaiah himself and not by defendants 1 to 5. The claim of the learned counsel for the plaintiff that Ex.A.2 is liable to be implemented since it was never cancelled, therefore, cannot be ip s o facto accepted, unless it is established that Ex.B.5 is false.

18. It is the contention of the learned counsel for the plaintiff that when the second defendant was at Kurnool, PW.1 would not have had occasion to link the second defendant at Kurnool unless the claim of the plaintiff was true that the defendants 1 to 5 attempted to sell the plaint schedule property to defendants 6 & 7. Ex.A.10 is the receipt of the post office from which the plaintiff allegedly the second defendant on

13.12.1981. Undoubtedly, the receipt shows that a telephonic call was made on 13.12.1981 from Nellore to Phone No.448 at Kurnool and that the telephone charges for the call were ` 31.50. It is the case of the plaintiff that when he heard that the defendants were entering into sale transaction with defendants 6 & 7 after they entered into agreement of sale with the plaintiff, the plaintiff contacted the second defendant at Kurnool and that the second defendant initially promised to look into the matter and that the second defendant later came over to Kavali, contacted the plaintiff and assured him not to bother about the proposed transaction between the defendants 1 to 5 on the one side and defendants 6 & 7 on the other side.

19. As rightly submitted by the learned counsel for the contesting defendants, Ex.A.10 does not show that the call was by the plaintiff. However, the receipt was produced by the plaintiff before the trial court and was marked as Ex.A.10. It, therefore, can be assumed that Ex.A.10 is receipt relating to the telephone made by the plaintiff. However, Ex.A.10 does not show that the telephone was to the second defendant. Merely because the second defendant was staying at Kurnool connection with his studies and merely because Ex.A.10 shows that a telephone call was made to Kurnool, I am afraid that I cannot draw an assumption that Ex.A.10 relates to the telephonic call from the plaintiff to the second defendant. Added to it, Ex.A.10 cannot show the purport of the call. The evidence of PW.1 regarding the telephone call under Ex.A.10 and the purport thereof remained ipse dixit. At any rate, the alleged telephonic call by the plaintiff to the second defendant, even if the same is proved, does not establish the case of the plaintiff clinchingly.

20. The plaintiff as well as the contesting defendants made rival claims that defendants 1 to 5 were in collusion the other side. The plaintiff claims defendants 1 to 5 are in collusion with the defendants 6 &

7. The defendants 6 & 7 contend that the defendants 1 to 5 are in collusion with the plaintiff. Defendants 1 to 5 were not examined by the plaintiff or by the contesting defendants. The learned counsel the plaintiff, however, contended that if the plaintiff was in collusion with the defendants 1 to 5, there was no need for the plaintiff to ring the second defendant on 13.12.1981 and that the plaintiff would have examined one of the defendants and probably second defendant as a witness on his side. The logic that the absence of the collusion between the plaintiff and defendants 1 to 5 can be culled out from the fact that the plaintiff did not examine any of defendants 1 to 5 applies with equal vehemence to the contesting defendants. The contesting defendants also did not examine defendants 1 to 5. If there was no collusion between the plaintiff and defendants 1 to 5 since defendants 1 to 5 did not depose on his behalf, there could not be any collusion between the defendants 1 to 5 on the one side and the contesting defendants on the other side, as defendants 1 to 5 did not depose on behalf of the contesting defendants.

21. On the other hand, defendants 1 to 5 remained ex parte. They did not challenge the case of the plaintiff. They did not file any written statement against the case of the plaintiff. In other words, they are indirectly in agreement with the case of the plaintiff. If there is any collusion on behalf of the defendants 1 to 5, it should be with the plaintiff and not with the contesting defendants in this background. However, the overall picture does not leave an impression that defendants 1 to 5 have been in collusion either with the plaintiff or with the contesting defendants. At any rate, where the plaintiff failed to clinchingly show that defendants 1 to 5 are in collusion with the contesting defendants, I am not prepared to accept the contention of the learned counsel for the plaintiff that there was collusion between the defendants 1 to 5 on the one side and the contesting defendants on the other side.

22. It is the case of the contesting defendants that defendants 6 & 7 purchased the undivided 1/3rd share of Velagapudi Venkata Ramaiah at ` 1,35,000/-. It may be recalled that the plaintiff claimed that he offered to purchase the share at ` 1,65,000/- and that as defendants 6 & 7 offered to purchase the share of Velagapudi Venkata Ramaiah at ` 1,75,000/-, the defendants 1 to 5 sold the same to the defendants 6 & 7 under Exs.A.5 to A.9 sale deeds.

23. The defendants 6 & 7 are co-sister-in-laws. DW.1 is the husband of the sixth defendant. The learned counsel for the plaintiff contends that defendants 6 & 7 could not have come to know about the suit against the defendants 1 to 5 and that the very fact that defendants 6 & 7 have contested the suit establishes collusion between the defendants 1 to 5 on the one side and defendants 6 & 7 on the other side. This is a very curious contention. The plaintiff laid the suit against as may as 9 defendants. Defendants 1 to 5 are the executants of the agreement of the sale in favour of the plaintiff. Defendants 6 & 7 are the vendees from DW.1. Defendant No.8 is the Manager of the firm. Defendants 8 & 9 are also the lessees of the firm. This is the reason assigned by the plaintiff for filing the suit against the defendants 1 to 9. It is rather difficult for me to understand how collusion can be attributed between defendants 1 to 5 on the one side and defendants 6 & 7 on the other side, when defendants 6 & 7 contested the suit.

24. If defendants 1 to 9 had engaged the same counsel, there was a possibility to consider about the collusion. However, defendants 1 to 5 remained ex parte in the suit. They allowed the plaintiff to fight with defendants 6 to 9. In such a background, I cannot assume that there was collusion between the defendants 1 to 5 on the one side and the defendants 6 & 7 on the other side by any stretch of imagination.

25. It is the case of the plaintiff that defendants 6 & 7 executed two pro-notes for a total sum of ` 75,000/- and that the suits in O.S.Nos.53 of 1982 and 81 of 1984 were laid by the second defendant and the first defendant for discharge of the debts covered by the pro-notes. Exs.B.21 & B.22 are the certified copies of the plaints in O.S.No.53 of 1982 and 81 of 1984 on the file of the Senior Civil Judge, Kavali. The suits were laid by the first defendant and second defendant respectively. In each of the cases, the pro-note was for ` 30,000/-. In other words, the total sum of the two pro-notes, covered by Exs.B.21 and B.22 suits, is only ` 60,000/- and not ` 75,000/-, as alleged. Assuming that the defendants 6 & 7 paid the balance of ` 1,00,000/- in cash at the time of sale deed, the total sale consideration was at ` 1,60,000/-, whereas the plaintiff claimed that he obtained Ex.A.2 agreement of sale for a sum of ` 1,65,000/-. The case of the plaintiff and the evidence available on record would not appear to synchronize with each other in this context. The plaintiff went further to contend that the pro-notes in the suits under Exs.B.21 and B.22 were antedated to overcome the claim of the plaintiff. I am afraid that there is no justification for the plaintiff to make allegations without substantiating the same. I consider that this contention of the learned counsel for the plaintiff that the pro-notes were antedated to suit the stand of the defendants 6 & 7 cannot be countenanced.

26. The learned counsel for the plaintiff also contended that if the defendants 6 & 7 were due of about ` 65,000/- under the two pro-notes by October 1981, it could not have been a ground to sell the properties at ` 1,75,000/-. It may first be noticed that the defendants 6 & 7 claim that they purchased the property at ` 1,35,000/- as evidenced by the plaintiff’s document under Exs.A.5 to A.9. Further, the contesting defendants never contended that the property was sold in order to discharge the debts under the pro-notes. If that were to be the case, the question of defendants 2 and 1 laying suits under Exs.A.21 and A.22 would not have arisen at all. I am afraid that the logic sought to be applied by the learned counsel for the plaintiff cannot be swallowed that the defendants 1 to 5 would not have sold the property in order to discharge the debts under the pro-notes.

27. To disprove Ex.B.5 agreement of sale by Velagapudi Venkata Ramaiah, the learned counsel for the plaintiff contended that there would not have been any need to execute Ex.B.4 fresh partnership deed, if Ex.B.5 was true. It may be recalled that Ex.B.5 was the agreement of sale executed by Velagapudi Venkata Ramaiah on 30.04.1980. Four days thereafter, on

04.05.1980, Velagapudi Venkata Ramaiah breathed his last. It is the case of the plaintiff that the second defendant became a partner in the place of his father late Venkata Ramaiah with effect from 05.05.1980 and that the partnership deed, however, was executed on 31.05.1980 under Ex.B.4.

28. Exs.A.5 to A.9 registration extracts of the sale deeds show that the sale deeds were executed in the last week of December from 24.12.1981 till 26.12.1981. Even according to the plaintiff, sale deeds were not obtained by defendants 6 & 7 till December 1981. When Velagapudi Venkata Ramaiah died on 04.05.1980, defendants 1 to 5 could not wait till December, 1981, for a period of more than 1½ year without inducting one amongst them as partners of the firm. I, therefore, do not accept the contention of the learned counsel for the plaintiff that Ex.A.4 partnership deed dated 31.05.1980 would not have been entered into if Ex.B.5-agreement of sale were true.

29. The learned counsel for the plaintiff not only attacked Ex.B.5, but also attacked Ex.B.4 on the ground that Ex.B.4 did not recite about Ex.B.5. Is it the case of the plaintiff that Ex.B.4 itself was not true or that Ex.B.4 was subsequently to brought on to suit the claim of the contesting defendants? Ex.B.4 is a partnership deed. It does not speak about the liabilities of the second defendant and defendants 6 & 7 who became partners. The partnership deed generally speaks about the ratio of partnership, the amounts invested by each partner, the method in which the firm should be run and the ratio in which the profits should be shared. The partnership deed does not prolifically narrate the obligations of the parties. It is not surprising that Ex.B.4 did not speak about Ex.B.5. Perhaps, it would have been surprising if Ex.B.4 referred to Ex.B.5.

30. Ex.B.4 was attested by one R.V. Krishnaiah. He was the attestor of Ex.B.5 as well. The plaintiff obtained Ex.A.11 affidavit from R.V. Krishnaiah to show that he did not attest Exs.B.4 & 5. R.V. Krishnaiah was 70 years old by the date of his affidavit. He was the brother-in-law of Velagapudi Venkata Ramaiah. He claimed that Velagapudi Venkata Raamiah did not agree to sell his share to the defendants 6 & 7 (covered by Ex.B.5) and that after the demise of Velagapudi Venkata Ramaiah, defendants 1 to 5 entered into an agreement of sale (in Ex.A.2) with the plaintiff in which R.V. Krishnaiah acted as a witness. I am afraid that in a trial, the affidavit of a witness is of no value when the witness was available to be examined as witness. If it is the case of the plaintiff that Exs.B.4 & B.5 are spurious and that the same is clear from the evidence of the alleged attestor of Exs.B.4 & B.5, the plaintiff ought to have examined the attestor (R.V. Krishnaiah) on his side. It is not as though R.V. Krishnaiah was no more by the time the trial commenced. Nevertheless, the plaintiff did not choose to examine R.V. Krishnaiah as a witness on his side. Had he been examined and had he been subjected to cross examination, the truth relating to the contents of Ex.A.11 would have come out to show whether R.V. Krishnaiah acted as an attestor under Exs.B.4 and B.5 or not.

31. The learned counsel for the contesting defendants urged that the plaintiff never demanded defendants 1 to 5, through notice the specific performance of the agreement of sale and that the plaintiff, therefore, is not entitled to specific performance, even if the plaintiff succeeds in this case. The plaintiff indeed succeeded before the trial court. However, in view of the Order 41 Rule 22 CPC, the very claim of the plaintiff is subject to scrutiny to determine whether the plaintiff has made out his case. In this process, it is contended by the learned counsel for the contesting defendants that even if the plaintiff succeeded in establishing Ex.A.2 and the primacy of Ex.A.2, the plaintiff would not be entitled to specific performance, as the plaintiff did not demand defendants 1 to 5, through a notice seeking for specific performance of the agreement of sale.

32. The learned counsel for the plaintiff contended that there was very little time for the plaintiff since the agreement of sale under Ex.A.2 was dated 29.11.1981, that the plaintiff questioned the second defendant on

13.12.1981 and that defendants 1 to 5 executed sale deeds from 24.12.1981 till 26.12.1981. There was no time the plaintiff issue notice demanding specific performance of the agreement of sale according to the plaintiff. I consider that when the agreement of sale was on 29.11.1981 under Ex.A.2 and when the very suit was laid on 16.01.1981 as the defendants executed sale deeds from 24.12.1981 onwards, the plaintiff cannot be blamed for not issuing notice before the suit to defendants 1 to 5. Certainly, there was no time for the plaintiff to react. Merely because the plaintiff did not put the defendants 1 to 5 on notice for specific performance of the agreement of sale, the suit does not fail in the light of the circumstances of the case, where the defendants 1 to 5 executed sale deeds in less than one month after the agreement of sale.

33. Ex.A.16 is a certified copy of the plaint in O.S.No.559 of 1974 on the file of the Junior Civil Judge, Kavali. It is a suit by Munaga Subbamma. Velagapudi Venkata Ramaiah as well as the defendants 6 & 7 herein were arrayed as defendants 9 to 11 in that suit. Defendants 1 to 5 are defendants 12 to 16. It was a suit for declaration of the title of the plaintiff therein and for perpetual injunction against the defendants therein. Velagapudi Venkata Ramaiah laid a written statement in that suit. Defendants 1 to 5 herein as defendants 12 to 16 adopted the written statement of Velagapudi Venkata Ramaiah, through adoption memo dated 10.07.1981. By then, late Venkata Ramaiah was no more. On

22.06.1982, O.S.No.559 of 1974 was decreed ex parte as the defendants therein remained ex parte. I do not consider that the same has relevance to the present suit. The purport of the present suit is the agreement of sale under Exs.A.2 and B.5 and the right of the plaintiff for specific performance of the agreement of sale. Munaga Subbamma’s suit in O.S.No.559 of 1974 on the file of the Junior Civil Judge, Kavali, therefore, has no relevance.

34. As already pointed out, DW.1 is the husband of the sixth defendant. He referred to Ex.B.20, which is an agreement dated 31.12.1981 by defendants 1 to 5 claiming that they have nothing to do with the business of M/s. Sreenivasa Rice, Oil and Flour Mill. He deposed that differences arose between R.V. Krishnaiah and DW.1 subsequent to Ex.B.20. The learned counsel for the plaintiff contended that DW.1 did not specify what differences were between DW.1 and R.V. Krishnaiah. The very fact that DW.1 stated that differences arose between him and R.V. Krishnaiah was a statement in the cross-examination of DW.1. The plaintiff could have cross- examined DW.1 as to the nature of differences between DW.1 and R.V. Krishnaiah. It is the plaintiff, who accepted the evidence of DW.1 at its face value; he could not later turned round and claim that the evidence of DW.1 cannot be accepted. In that context, at any rate, non-examination of R.V. Krishnaiah by the defendants is of no consequence. On other hand, when the plaintiff filed Ex.A.11 as an affidavit of R.V. Krishnaiah, it is for the plaintiff to examine R.V. Krishnaiah and the non-examination of R.V. Krishnaiah attracts an adverse inference against the plaintiff that despite the efforts of the plaintiff, R.V. Krishniah was not willing to speak against the defendants.

35. DW.1 does not have several connections with defendants 1 to 5, so much so, he was not aware that defendants 1 to 5 remained ex parte in the suit. In his evidence on 21.02.1989, DW.1 deposed that defendants 1 to 8 engaged advocate, although he did not know who appeared on behalf of the first defendant. This evidence on the part of DW.1 in the cross-examination suggests that defendants 6 & 7 have nothing to do with defendants 1 to 5 lest they should not have known that defendants 1 to 5 remained ex parte in the suit. It is inter alia contended that Maddila Subba Rao and Prasada Rao were clerks under DW.1. They are DWs.6 and 2. It is contention of the learned counsel for the plaintiff that DWs.6 & 2 did not support the case of DW.1. I am afraid that DW.1 merely stated that DWs.2 & 6 were clerks under him, but stated that they did not maintain his accounts. He did not depose that DWs.2 & 6 were aware about all his affairs.

36. In his evidence, DW.1 deposed in June, 1989 that R.V. Krishnaiah suffered from paralysis in August, 1981, that R.V. Krishnaiah became bedridden since then and that R.V. Krishnaiah ultimately died about 4 or 5 years prior to the evidence of DW.1 (perhaps in 1984 or 1985). Would exhibit Ex.A.11 become material in such circumstances where R.V. Krishnaiah is no more. Ex.A.11 affidavit was sworn to on 05.03.1984 before a Notary Public. The Notary Public was not examined. Added to it, Ex.A.11 shows that the affidavit was obtained in connection with the present suit. There was no reference in Ex.A.11 that R.V. Krishnaiah suffered from paralysis. No circumstances were explained why it became necessary for R.V. Krishnaiah to execute Ex.A.11. I, therefore, am not ready to accept Ex.A.11 even though it is evident that by the time the trial concluded, R.V. Krishnaiah was no more. I make it clear that the evidence of R.V. Krishnaiah adduced through Ex.A.11 is inadmissible, as it was not a dying declaration and also because the evidence of PW.1 regarding the health of R.V. Krishnaiah did not tally with Ex.A.11.

37. DW.1 contended that Ex.B.5 was drafted near his Textiles Shop. He claimed that the non-judicial stamp paper on which Ex.B.5 was drafted was brought by one of his colleagues whose name he could not recollect. It is the case of DW.1 that one of his employees in the textiles shop scribed on Ex.B.5 and that ` 15,000/- was paid on the date of Ex.B.5. He also claimed that the attestors were present at the time of execution of Ex.B.5, although he could not state why the attestors came to the shop. The learned counsel for the plaintiff tried to show that the evidence of DW.1 is not reliable, as DW.1 could not explain why the attestors were present at the textiles shop of DW.1 at the time of execution of Ex.B.5. I do not agree with this submission of the learned counsel for the plaintiff. The evidence of DW.1 cannot be suspected merely because he did not explain why the attestors went to the textiles shop of DW.1 on the date of execution of Ex.B.5. What is relevant is whether the attestors were present and attested Ex.B.5. Unless the evidence of attestors contradicts and does not support the evidence of DW.1, the presence of the attestors cannot be disbelieved, merely because DW.1 could not state why the attestors were present at the textiles shop at the time of the execution of Ex.B.5.

38. The learned counsel for the plaintiff tried to show that Ex.B.5 was a made up document from the fact that the executant of Ex.B.5 signed on the last page of Ex.B.5 only and did not sign on other pages. It may be seen that Ex.B.5 runs into two pages only. Indeed, to safeguard the interest of both sides, usually each page of document is signed in token of execution. However, is not uncommon, particularly where document runs only two pages, to sign the second page only. I, therefore, do not consider that the signature on the second page by the executant in Ex.B.5 cannot throw suspicion over Ex.B.5. Indeed, the learned counsel for the plaintiff attacked Ex.B.5 regarding the attestors. I shall refer to the same at the appropriate time. Suffice it to notice at this stage that merely because Ex.B.5 was signed in the second page only by Velagapudi Venkata Ramaiah, Ex.B.5 cannot be suspected, more so, where page No.2 is the overleaf of page No.1 and not a separate sheet.

39. The learned counsel for the plaintiff put forth Ex.B.26 as a ground to disbelieve the genuineness of Ex.B.5. Ex.B.26 is the certified copy of plaint in O.S.No.24 of 1984 on the file of the Senior Civil Judge, Kavali. It was a suit for the dissolution of Srinivasa Textiles Company. It may be recalled that Ex.B.5 relates to M/s. Srinivasa Rice, Oil and Flour Mill and not Srinivasa Textiles Company. Ex.B.26 suit has nothing to do with the 1/3rd share of Velagapudi Venkata Ramaiah in the Rice, Oil and Flour Mill.

40. Ex.A.24 is certified copy of the plaint in O.S.No.25 of 1994. O.S.No.25 of 1984 was a suit on the file of the Senior Civil Judge, Kavali by the second defendant herein against defendants 6 to 8 herein seeking for the dissolution of M/s. Srinivasa Rice, Oil and Flour Mill. Again, the learned counsel for the plaintiff contended that if the defendants 1 to 5 had sold the share of Velagapudi Venkata Krishanaiah to defendants 6 & 7, there was no need for the second defendant to lay a suit (under Ex.A.24 for dissolution of the firm). It is the contention of the learned counsel for the plaintiff that Ex.A.24 prima facie establishes that defendants 6 & 7 did not purchase the share of Velagapudi Venkata Ramaiah from defendants 1 to 5 and that Ex.B.5 as well as Exs.A.5 to A.9 were concocted for causing wrongful loss to the plaintiff and for wrongful gain to the defendants 6 & 7. If such a suit for the dissolution of the firm had been filed by defendants 6 & 7, the plaintiff’s contention would have been justified. If the second defendant laid a suit for dissolution of the firm, which he had already sold to the defendants 6 & 7, the defendants 6 & 7 cannot be blamed for it. It cannot be a ground to disbelieve the sale of the share of Velagapudi Venkata Ramaiah to the defendants 6 & 7.

41. DW.2 was the clerk in M/s.Srinivasa Textiles owned by DW.1. He scribed Ex.B.5 agreement. He admits that he did not have experience of scribing agreements of sale and that he never scribed any agreement of sale for M/s. Srinviasa Textiles prior to Ex.B.5. Sri U. Muralidhar Rao, learned counsel for the plaintiff contended that it was totally unnatural for the defendants 6 & 7 to engage the second defendant to scribe Ex.B.5 where there was no prior experience for DW.2 in scribing agreements of sale. It certainly is a curiosity why defendants 6 & 7 did not engage the services of the experienced scribe in preparing Ex.B.5. However, although more or the scribe was inexperienced, I am not prepared to accept the contention of the learned counsel for the plaintiff that Ex.B.5 was concocted, since it was natural for DW.1 to deploy his clerk-DW.2 to scribe Ex.B.5.

42. The learned counsel for the plaintiff pointed out that DW.2 did not scribe his name in Ex.B.5 as the scribe of Ex.B.5. Where DW.2 had little experience in scribing agreements of sale, it is not surprising for DW.2 not mentioning his name as scribe of Ex.B.5 on account of his ill-experience.

43. DW.2 deposed that he initially prepared a draft before Ex.B.5 was prepared. The draft had not been filed before the court. The learned counsel for the plaintiff contended that the claim of DW.2 deserves to be suspected, as the draft of Ex.B.5 was not filed. This line of argument is highly illogical and is not acceptable. The learned counsel for the plaintiff tries to contend that as the draft of Ex.B.5 was not filed, it may be considered that DW.2 did not scribe Ex.B.5 in the circumstances as deposed by DW.2. I am afraid that such a stand cannot be accepted.

44. DW.2 deposed that he did not know the particulars of the property that was sold. He also deposed that the possession of the property agreed to be sold might have been delivered. Both the contentions cannot ordinarily be suspected. The details of the property in respect of which Ex.B.5 was scribed are stated in the schedule. Ex.B.5 further recites that possession would be delivered at the time of the execution of sale deed. If DW.2 did not depose in respect of these aspects, it can be only on account of slip of memory or lack of photographic memory. It cannot be culled out that DW.2 was speaking falsehood, when there was no motive for DW.2 to depose in favour of the contesting defendants.

45. The learned counsel for the plaintiff attacked the evidence of DWs.3 & 4 as well. Both of them attested Ex.B.5. It is his contention that Velagapudi Venkata Ramaiah signed Ex.B.5 in the presence of PWs.3 & 4. They agree with DW.2 as to the time at which Ex.B.5 was executed. Regarding the sequence in which DWs.3 & 4 signed Ex.B.5, the learned counsel for the plaintiff pointed out that after R.V. Krishnaiah, DW.4 attested Ex.B.5 and DW.3 attested Ex.B.5 thereafter. Veera Reddy was the other attestor of Ex.B.5.

46. In his evidence, DW.3 deposed that DW.4 was called after DW.2 and others attested Ex.B.5 and that DW.4 subsequently attested Ex.B.5. Ex.B.5, as already pointed out, shows that DW.4 signed it before DW.3. The evidence of DW.3 in this context is patently incorrect. However, I am not prepared to draw a conclusion that DW.3 was deposing falsehood, merely because he did not give the correct sequence in which he and DW.4 attested Ex.B.5.

47. Regarding DW.4, it is the contention of the learned counsel for the plaintiff that DW.4 is admittedly not a native of Kavali and that he was accommodating person of defendants 6 & 7, so much so, his attestation was obtained on Ex.A.5 and other sale deeds and that DW.4 was accommodating defendants 6 & 7 by scribing the signature on Ex.B.5, although Velagapudi Venkata Ramaiah never executed Ex.B.5. He contended that DW.4 was an omnibus witness and that DW.4 was omnipresent on all occasions and was willing to act as an attestor. Be that as it may, merely because DW.4 was an attesting witness in many documents, his evidence does not become unreliable and cannot be rejected on that ground. The plaintiff is not able to show otherwise any circumstances to suspect the evidence of DW.4.

48. DW.8 scribed the original of Ex.A.5 (Ex.B.7). It is the contention of the learned counsel for the plaintiff that Ex.A.5 was a continuation of the antedated of Ex.B.5 at the instance of defendants 6 & 7. He also contended that the sale deeds were not natural and were highly suspicious. I am afraid that the evidence let in by the defendant through DWs.1 to 7 is watertight in respect of Ex.B.5 as well as the sales.

49. So far as the sales are concerned, all the sales were through registered sale deeds. It is not open for the plaintiff to contend that the sales were spurious. The primary attack of the plaintiff, however, is that Ex.B.5 agreement of sale by Velagapudi Venkata Ramaiah was false. As already pointed out, the evidence of DWs.1 to 11 could not be dented through cross-examination. Their evidence does not appear to be artificial and manipulated.

50. The plaintiff certainly is not able to show that there was an agreement of sale by Velagapudi Venkata Ramana in favour of defendants 6 & 7 though defendants 1 to 5 executed Exs.A.5 to A.9 (Exs.B. 7, 10, 13, 16 & 17 respectively) in accordance with Ex.B.5 as admitted by both sides. Thus, evidently, defendants 6 & 7 purchased undivided 1/3rd share of Velagapudi Venkata Ramaiah in the business and the property, so much so, the plaintiff cannot seek the specific performance of the same.

51. However, learned counsel contesting defendants attacked the case of the plaintiff contending that the plaintiff failed to prove his case. The learned counsel the plaintiff at one stage contended that as defendants 6 & 7 did not depose in this case, adverse inference should be drawn against the defendants 6 & 7 and that the case of the plaintiff, therefore, should be deemed to have been proved. The plaintiff must prove his case on the strength of his evidence and not on the basis of the weakness of other side. At any rate, it is the contention of the learned counsel for the contesting defendants that not only a party to the lis, but the spouse of the party to the lis is also a competent witness in any case in view of Section 120 of the Evidence Act.

52. He relied upon Satyanarayana, Spun Pipe Company v. N. Padmavathi [2] in support of his contention. In that case, the husband of the plaintiff deposed as PW.1 contending that he had been looking affairs of the plaintiff and that he had been in full knowledge of the facts. He further contended that he was one of the attestors of Ex.A.1. The plaintiff did not choose to depose. Referring to Section 120 of the Evidence Act, this court held that in civil proceedings, parties and their spouses were equally competent witnesses and that when the spouse of a party was examined, adverse inference could not be drawn against the party on the ground that the party did not depose in the case. The learned counsel or the contesting defendants submitted the contesting defendants proved Ex.B.5 through the evidence of DWs.1, 4, 6 and others and that Exs.A.5 to A.9 sale deeds were proved by the plaintiff himself. His case is that Ex.A.2 was not true and that the same could not be acted upon.

53. I would venture to recall the stand of the learned counsel for the contesting defendants that the plaintiff would not be entitled to lay the suit at all much less a suit for specific performance if Ex.A.2 is not proved or if Ex.B.5 is proved. The learned counsel for the contesting defendants urged that as Ex.B.5 has been clinchingly proved by the defendants, it is irrelevant whether Ex.A.2 is proved or otherwise.

54. Indeed, Exs.B.5 and A.2 are agreements of sale. Consequently, the prior agreement of sale would prevail over the later. Ex.B.5 is prior to Ex.A.2. Added to it, Ex.B.5 was executed by the owner of the property himself in Velagapudi Venkata Ramaiah, whereas Ex.A.2 was executed by defendants 1 to 5 after the death of the original owner, Venkata Ramaiah. If Exs.A.2 and B.5 are established, Ex.B.5 should prevail over Ex.A.2 in this background. Considering that Ex.B.5 has been established by the contesting defendants, Sri V. Srinivas attacked Ex.A.2 and tried to show that Ex.A.2 was not true and was never intended to be acted upon.

55. It is contended by the learned counsel for the contesting defendants that the evidence of PWs.2 to 4 is inconsistent and contradictory to each other and that the evidence of PWs.2 to 4 is not sufficient to accept the case of the plaintiff.

56. PW.1 who is the plaintiff himself deposed (in his cross examination on 06.09.1981) that the Mill was not in a working condition right from the beginning and that PW.1 knew about the execution of the sale deeds by defendants 1 to 5 in favour of defendants 6 & 7, albeit the plaintiff was not present at the time of registration of those sale deeds. He admitted that he did not issue any notice either to defendants 1 to 5 or to defendants 6 & 7 informing them about Ex.A.2 agreement of sale in his favour demanding defendants 6 & 7 not to purchase the property. He also contended that defendants 6 & 7 sold the Expeller to M/s.J.M.K. Industries, Gulbarga. However, admittedly, the plaintiff did not issue any notice to defendants 6 & 7 demanding them not to sell the Expeller on the ground that the plaintiff would own the Expeller in accordance with the agreement of sale once he obtained the sale deed for the property.

57. As rightly submitted by the learned counsel for the contesting defendants, the conduct of the plaintiff is not natural in this regard. If the plaintiff were the holder of the agreement of sale, it would have been natural for him to protest when defendants 1 to 5 executed sale deeds in favour of defendants 6 & 7; the plaintiff ought to have raised hue and cry when the Expeller was disposed of by defendants 6 & 7. It is the contention of the learned counsel for the contesting defendants that as the plaintiff was never the holder of the agreement of sale under Ex.A.2, the plaintiff could not react to the sales by defendants 1 to 5 in favour of defendants 6 & 7 and the sale by defendants 6 & 7 in favour of J.M.K. Industries. Indeed, no explanation is forthcoming from the plaintiff for not reacting to these incidents. They certainly show that all is not well regarding the claim of the plaintiff.

58. Regarding the very execution of Ex.A.2, it is the contention of the plaintiff as PW.1 that he did not take the attestors of Ex.A.2 to the house of defendants 1 to 5 and that by the time he went to the house of defendants 1 to 5 along with the scribe, the attestors were already present. It is the case of the plaintiff that DWs.2 to 4 attested Ex.A.2.

59. Ex.A.2 claimed that he knew DW.1 as well as the husband of the seventh defendant and that he had been residing four houses away from the house of defendants 6 & 7. PW.2 is said to be doing wholesale cloth business as well as doing business as a pawnbroker. Although he admitted that he attested Ex.A.2, he was totally silent as to who requested him to act as an attestor. He further claimed that he informed Munaga Subbamma, mother of defendants 6 & 7 on the same day that the plaintiff entered into an agreement of sale with defendants 1 to 5 in respect of the undivided 1/3rd share of late Velagapudi Venkata Ramaiah. In other words, it is the case of PW.2 that defendants 6 & 7 were aware about the agreement of sale in favour of the plaintiff.

60. PW.2 went further to state that he informed Subbamma, mother of defendants 6 & 7 about Ex.A.2. He admittedly was not present when there was bargain for the offer and the rate. He deposed that apart from defendants 1 & 2, some of the children also signed in Ex.A.2. It may be recalled that the first defendant signed Ex.A.2 as the guardian of defendants 3 & 5, apart from signing in her individual capacity. Defendants 2 & 4 also signed Ex.A.2. However, PW.2 was not able to state how many children of the first defendant signed Ex.A.2. He merely deposed that apart from defendants 1 & 2, some other children also signed Ex.A.2.

61. The learned counsel for the contesting defendants pointed out that PW.2 used plurality as to the persons, who signed Ex.A.2 apart from defendants 1 & 2 and that the same is factually incorrect. Indeed, the fourth defendant is the only child of the first defendant who signed Ex.A.2, apart from defendants 1 & 2. It is the contention of the learned counsel for the contesting defendants that Ex.A.2 was never executed in the circumstances in which it was allegedly executed and that the same is evident since PW.2 could not state how many children of the first defendant executed Ex.A.2. PW.2 further deposed that one Velagapudi Venkata Chari scribed Ex.A.2, whereas PW.4 (Vakulabharanam Venkata Charyulu attested) scribed Ex.A.2. Once again, it is contended by the learned counsel for the contesting defendants that PW.2 did not even remember who scribed Ex.A.2 and could not state who actually exacted Ex.A.2, so much so, the evidence of PW.2 cannot be swallowed. 62 I agree with the contention of the learned counsel for the contesting defendants that the evidence of PW.2 is not inspiring where PW.2 faltered in mentioning the name of the scribe and also failed to state who scribed their signatures in Ex.A.2. It would appear to be the case of the learned counsel for the plaintiff that on account of efflux of time, PW.2 could not state the meticulous particulars. Indeed, Ex.A.2 was allegedly executed in 1981 and PW.2 was deposing in 1988. However, the particulars, which PW.2 failed to clarify are not mere meticulous particulars but are material details, such as the name of the scribe and the names of the persons or at least the number of persons who executed Ex.A.2. I, therefore, consider that the evidence of PW.2 cannot be accepted as proof of Ex.A.2.

63. PW.3 is yet another attestor. He was indulging in cloth business. He was also curing patients through prayers and penance. He claimed that he was treating R.V. Krishnaiah when R.V. Krishnaiah suffered from paralysis and that he was performing prayers on behalf of R.V. Krishnaiah. Regarding the facts of the case, his very first contention was that defendants 1 to 5 possessed 1/4th share in the Rice Mill. This contention itself is incorrect. They inherited the share of Velagapudi Venkata Ramaiah who possessed 1/3rd undivided share. Inter alia, PW.3 deposed that he attested Ex.A.2. He did not remember the name of the scribe of Ex.A.2. He deposed that apart from defendants 1 & 2, two other girls viz., the daughters of the first defendant signed Ex.A.2. Velagapudi Venkata Ramaiah and defendant have four children in defendants 2 to 5. Defendants 3 & 5 are daughters. Defendants 2 & 4 are sons. While so, the third defendant (M. Anuradha) signed Ex.A.2, as she would appear to be a married lady by then as her surname indicates. The first defendant signed on behalf of defendants 4 & 5, who were minors. Thus, it is only defendants 1, 2 & 3 alone signed Ex.A.2. While so, PW.3 deposed that two daughters of the first defendant signed Ex.A.2, which is factually incorrect. While PW.2 deposed that he informed the transaction to Subbamma, mother of defendants 6 & 7, PW.3 deposed that he informed the transaction to DW.1 during the evening hours. It would appear that the plaintiff was trying to show that defendants 6 & 7 were aware about the agreement of sale under Ex.A.2, so much so, the sale deeds in their favour were liable to be cancelled.

64. PW.3 curiously deposed that he was a close friend of DW.1, if so it is for him to explain why he chose to depose against the wife of his close friend. The very contention of PW.3 that he has been a close friend of DW.1 cannot be swallowed in this background. The learned counsel the contesting defendants attacked the evidence of PW.3 on the ground that PW3, who did not know how many persons signed Ex.A.2 and who did not know the name of the scribe of Ex.A.2 cannot be accepted, more so where PW.3 did not even know the quantum of share possessed by defendants 1 to 5, which was agreed to be sold under Ex.A.2. As in the case of PW.2, the evidence of PW.3 is not inspiring in view of inherent inconsistencies and absence of explanation for the inconsistencies. I agree with the contention of the learned counsel for the contesting defendants that the evidence of PW.2 cannot be basis of accepting Ex.A.2.

65. PW.4 is the scribe of Ex.A.2. PW.4 claimed that some one approached him on the date of Ex.A.2, having been signed by R.V. Krishnaiah or the plaintiff and that he did not remember the name of the person who approached him. He further deposed that he did not remember whether the attestors of Ex.A.2 were present at the house of R.V. Krishnaiah by the time he went to the house of R.V. Krishnaiah or whether the attestors went to the house of R.V. Krishanaiah after PW.4 reached the house of R.V. Krishnaiah. He did not even remember whether any attestor was called from outside at the time of the execution of Ex.A.2.

66. PW.4 is not a general witness like PWs.2 & 3. PW.4 is a licenced document writer. He is expected to remember the meticulous details of the cases in which he scribed documents. He is also expected to maintain the record of events, in the shape of a diary or other instrumentality through which he could recall the incidents even after a passage of time. While so, PW.4 claimed that he did not maintain diary to recall the incidents. He also deposed that he did not remember some of the incidents. The incidents that PW.4 did not remember indeed are fairly trivial. However, when PW.4 was tested in cross- examination with reference to these aspects, PW.4 broke down and claimed that he did not remember the incidents. I am afraid that the evidence of PW.4 cannot prove Ex.A.2 where the evidence of PW.4 is in bits and pieces and is not able to be mixed up smoothly with the incidents. Thus, the evidence of PW.4 itself is clumsy enough to hold that the evidence of PW.4 cannot per se prove the execution of Ex.A.2.

67. The plaintiff chose to examine two attestors in PWs.2 & 3 and also choose to examine the scribe of Ex.A.2 as PW.4. The evidence of none of them is inspiring to accept Ex.A.2. As rightly submitted by the learned counsel for the defendants, the very basis of the claim of plaintiff that the plaintiff was the holder of agreement of sale under Ex.A.2 is not made out. The necessary corollary is that the plaintiff cannot question the sales in favour of defendants 6 & 7 and cannot seek for the specific performance of the agreement of sale.

68. The learned counsel for the contesting defendants also pointed out that Ex.A.2 was scribed on a two-year-old non-judicial stamp paper throwing any amount of doubt over the truth of the case of the plaintiff. Ex.A.2 was allegedly executed on 29.11.1989. The document was on two stamp papers of two-rupee denomination and one stamp paper of one-rupee denomination. All the stamp papers were purchased in the name of the plaintiff on 20.03.1979. The one rupee denomination bears the seal it was dated

03.08.1978. Thus, the agreement of sale under Ex.A.2 was executed on non-judicial stamp papers, which were more than 2½ years old.

69. Sri U. Muralidhar Rao, learned counsel for the plaintiff contended that there is no prohibition for using old stamp papers in obtaining agreement of sale. In support of his contention, he placed reliance upon Thiruvengada Pilai v. Navaneethammal [3] . In that case, a question came up before the Supreme Court whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to the date of execution was valid or otherwise. The Supreme Court observed: “The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.”

70. It is the contention of the learned counsel for the plaintiff on the strength of this decision that Ex.A.2- agreement of sale cannot be discarded on the ground that it was executed on 2½ years old stamp papers.

71. Sri V. Srinivas, learned counsel for the contesting defendants did not urge that Ex.A.2 deserves to be discarded as it was executed on 2 ½ years old stamp papers. He contended that it is suspicious that Ex.A.2 was scribed on 2½ years old stamp papers. Satisfactory explanation is not forthcoming from the plaintiff. If the stamp paper is of a high denomination, the plaintiff who purchased the same for one purpose and preserved the same, as the stamp paper could not be used for the purpose for which it was purchased could have used the same for a different purpose.

72. It is pertinent to recall that Ex.A.2 is in four pages out of which pages 1 & 2 are on non-judicial stamp papers of two-rupee denomination each and page No.3 is on non-judicial stamp paper of one-rupee denomination. I consider that when the plaintiff is a leading businessman, I do not agree with the contention of the learned counsel for the plaintiff that the plaintiff used 2 ½ years old stamp papers, the total value of which is ` 5/- for an agreement of sale worth ` 1,65,000/-. It would have been more natural for the plaintiff to use newly purchased stamp papers, so that the plaintiff was certain that no question would be passed on a future date that the agreement of sale was executed on old stamp papers. PW.1 claimed that it was a Sunday and that he, therefore, used old stamp papers, which were available with him. There is no reason why the plaintiff, who was a seasoned businessman, could not have waited Monday to purchase new stamp papers for engrossing the agreement of sale. The explanation offered by the plaintiff as PW.1 for obtaining Ex.A.2 on old stamp papers is not satisfactorily.

73. In Thiruvengada Pillai, while the Supreme Court observed that there is no bar for using old stamp papers, the Supreme Court itself observed that such usage of old stamp papers might be a circumstance and a piece of evidence to doubt the authenticity of the agreement. Where the plaintiff did not offer satisfactory explanation why old stamp papers of very low denomination was used for engrossing the agreement of sale, in the light of the inconsistency in the evidence of PWs.2 to 4 (as already pointed out), I consider that Ex.A.2 is not proved clinchingly by the plaintiff to order for specific performance of the agreement of sale.

74. The learned trial judge held that the plaintiff proved passing of consideration under Ex.A.2 and that the discrepancies do not non-suit the plaintiff. This view of the learned trial judge is incorrect. Where Ex.A.2 is not proved, there is no justification to proceed on the basis of recitals in Ex.A.2. One attestor did not know the name of the scribe. Another attestor gives the wrong name of the scribe. The attestors do not state why they were present at the house (of R.V. Krishnaiah) where the agreement of sale was executed. The scribe also does not agree with the number of the executants in the agreement of sale. There is no justification for the trial court to place reliance on such agreement of sale. I consider that Ex.A.2 is highly suspects and cannot be accepted.

75. Unfortunately, the basis of the case of the plaintiff is Ex.A.2. Once Ex.A.2 is not proved, the case of the plaintiff shall fail for specific performance of the agreement of sale. As rightly submitted by the learned counsel for the contesting defendants, the trial court took a wrong approach that it should uphold either Ex.A.2 or Ex.B.5 and chose to uphold Ex.A.2 and that Ex.B.5 has been made out by the contesting defendants and deserves to be ignored. Assuming that Ex.B.5 is not proved, it does not follow that Ex.A.2 is true. Thus, the approach of learned judge cannot be appreciated.

76. The learned counsel for the contesting defendants attacked the case of the plaintiff on other grounds as well. Admittedly, the plaintiff is aware that defendants 6 & 7 held two-third (2/3rd) undivided interest in the business and in the estate while Velagapudi Venkata Ramaiah had 1/3rd undivided interest thereof. It is the contention of the learned counsel for the contesting defendants that it is but natural for the plaintiff to inform defendants 6 & 7 about his purchasing 1/3rd undivided share of Velagapudi Venkata Ramaiah, as he is to be in partnership with defendants 6 & 7 in future. Admittedly, the plaintiff never informed defendants 6 & 7 in writing that he agreed to purchase the undivided 1/3rd share of Velagapudi Venkata Ramaiah. It would also appear to be the case of the plaintiff that he informed defendants 6 & 7 orally about Ex.A.2. It is only the attestors of Ex.A.2, who claimed that one of informed the mother of defendants 6 & 7 and they informed the husband of the sixth defendant (DW1) about the agreement of sale, which aspect has not been admitted by DW.1.

77. PW.1 allegedly purchased 1/3rd share in the running business. He, however, did not know the assets and liabilities of the firm. Although admittedly the plaintiff had no enmity with defendants 6 & 7, he never enquired defendants 6 & 7 about the liabilities, if not the details of the assets and liabilities of the firm. He did not even protest to defendants 6 & 7 when defendants 6 & sold away the Expeller. This could not be the conduct of a person who purchased or who proposes to purchase a share in an on going concerned. It is not possible to accept the contention of the plaintiff that the plaintiff agreed to purchase the 1/3rd undivided share of Velagapudi Venkata Ramaiah.

78. The learned counsel for the plaintiff made strenuous efforts to show that the plaintiff has means to honour Ex.A.2 and that he thus has means to discharge his part of the agreement of sale. He produced his bank account to show more than ` 1,50,000/- in his account to establish his capability to discharge his obligation under the agreement of sale under Ex.A.2.

79. The contesting defendants never questioned the capability of the plaintiff. Their case is that Ex.A.2 itself is false and that even if Ex.A.2 is true, in view of Ex.B.5, the defendants 6 & 7 are entitled to obtain sale deeds from defendants 1 to 5 and that they have chosen to do so accordingly. It is the vehement contention of the learned counsel for the plaintiff that Ex.B.5 is false. He referred to the evidence of DW.11 and contended that DW.11 who is a crucial witness intrinsically disproved the case of defendants themselves. DW.11 is the eighth defendant who is no other than the son of the seventh defendant. It is the case of the plaintiff that the eighth defendant was the Manager of the Mill and Firm and that he himself managed the Firm. That the eighth defendant was the manager of the firm had not been disputed by defendants 6 & 7.

80. As already pointed out, defendants 6 & 7 did not depose. DW.1, husband of the sixth defendant and eighth defendant as DW.11 deposed on behalf of the defendants. DW.11 deposed in April 1980, defendants 6 & 7 borrowed ` 15,000/- from him and that in April 1981, they borrowed another sum of ` 20,000/- from him and that in December 1981 he lent ` 6,750/- to seventh defendant for purchase of non-judicial stamp papers for the preparation of sale deeds. He referred to Ex.X.16 entry in his account books. DW.11 deposed that about a weak prior to 30.04.1980 (the date on which Ex.B.5 was executed), defendants 6 & 7 informed him that bargain was struck by defendants 6 & 7 for the purchase of the Rice Mill. This statement was not referred to in the written statement of DW.8. The learned counsel for the plaintiff contended that DW.1 was not speaking the truth. I may go to the extent of disbelieving the evidence of DW.11. Nevertheless, the case of the plaintiff is not proved regarding Ex.B.5. In fact, the truth or otherwise of Ex.B.5 becomes irrelevant once Ex.A.2 is found to be not true, since defendants 6 & 7 obtained sale deeds, which cannot be questioned by the plaintiff in the absence of Ex.A.2. The contention of the learned counsel for the plaintiff that Ex.B.5 is a concocted document, therefore, is of no consequence.

81. The learned counsel for the plaintiff contended that the contesting defendants did not choose to file any income tax returns to prove that they purchased the share of Velagapudi Venkata Ramaiah. Certainly, it is curious why the contesting defendants did not choose to file their income tax returns. If defendants 6 & 7 had purchased the share of Velagapudi Venkata Ramaiah, it would be reflected in the income tax returns. However, the absence of filing of the income tax returns does not negate the claim of defendants 6 & 7 that they purchased the share of Velagapudi Venkata Ramaiah; more so, when this question is irrelevant once Ex.A.2 is disbelieved.

82. The plaintiff attacked the evidence of DW.11 on the ground that there is a solitary entry in Ex.X.16 regarding the payment of ` 15,000/- to DW.4 and Exs.X.2 to 49 tax returns did not contain the seal of the income tax authorities. They do not have any relevance to the merits of the case. The simple questions are two fold viz., i) whether Ex.A.2 is true and ii) whether defendants 6 & 7 purchased the share of Velagapudi Venkata Ramaiah under Ex.A.5 to A.9. If the first question is answered in the positive, another question would arise whether the plaintiff would be entitled to specific performance of agreement of sale. When the plaintiff failed to prove Ex.A.2, the question of specific performance of the agreement of sale does not arise. Further, the plaintiff himself produced Exs.A.5 to A.9 claiming that defendants 6 & 7 purchased the property. Whether they are bona fide purchasers without notice or were aware of Ex.A.2 does not arise for consideration where the plaintiff failed to prove Ex.A.2.

83. The learned counsel for the plaintiff also contended the plaintiff is entitled to specific performance of the agreement of sale on the strength of the provisions of the Specific Relief Act. Before answering this question of law, I may examine more academic issue whether Ex.B.5 is proved.

84. The defendants 6 & 7 were partners with Velagapudi Venkata Ramaiah. If Venkata Ramaiah or defendants 1 to 5, after the death of Venkata Ramaiah, seek to sell the share of Venkata Ramaiah, their first choice would be to offer the same to defendants 6 & 7 who are the other partners. This indeed is the case of the plaintiff as well. The case of the contesting defendants is that Venkata Ramaiah himself offered to sell his share as he was suffering from ill-health and that Ex.B.5 agreement of sale was entered into by Venkata Ramaiah with defendants 6 & 7 on 30.04.1980. Ex.B.5 was scribed by a clerk of DW.1. The trial court considered that Ex.B.5 was suspicious because it was scribed by the clerk of DW.1. DW.1 is no other than the husband of the sixth defendant who was one of the vendees. It, therefore, was natural for DW.1 to get it scribed by his clerk. Ex.B.5 does not find an endorsement that it was scribed by DW.2. I have already given the reason why the evidence of DW.2 cannot be discarded.

85. I may now consider the question of specific performance assuming that Ex.A.2 is made out and Ex.B.5 is disbelieved.

86. The learned counsel for the plaintiff contended that the discretionary powers vested u/s.20 (1), Specific Relief Act, 1963 ought to have been exercised in favour of the plaintiff ordering specific performance. Section 20 (1) envisages that the jurisdiction to grant a decree for specific performance is discretionary and that the court is not bound to grant the specific performance merely because it is lawful to do so. The Section itself reads that discretion is vested in the court whether to order specific performance or otherwise. Assuming that Ex.A.2 is true and assuming that Ex.B.5 is also false at the same time, the question would arise whether the plaintiff is entitled to specific performance of Ex.A.2 agreement of sale. The learned trial judge held that Ex.A.2 was true and that Ex.B.5 was not true. He, however, did not grant specific performance of the agreement of sale. He merely ordered the refund of the advance of ` 10,101/- paid by the plaintiff to defendants 1 to 5 and granted compensation at ` 40,000/- from defendants 1 to 7. The learned counsel for the plaintiff contends that when the trial court founds all the issues in favour of the plaintiff, the trial court ought to have granted a decree of specific performance except for extraordinary reasons.

87. The learned trial judge declined to grant specific performance apprehending that grant of specific performance in favour of the plaintiff where sale deeds were already executed in favour of defendants 6 & 7 and where defendants 6 & 7 had taken possession of the property, would create any amount of further litigation and that first of the alternative reliefs would put a quietus to such an eventuality. This is the primary consideration and more or less the only consideration for the trial court to decline to grant the relief of specific performance in favour of the plaintiff. The learned counsel for the plaintiff on the other hand considered that when Ex.A.2 was a bona fide transaction, equitable relief should be granted in favour of the bona fide person and that the trial court ought to have granted the relief of specific performance. The plaintiff indeed laid the appeal seeking for specific performance only. As already pointed out, the contention of the learned counsel for the plaintiff that the contesting defendants cannot canvass the truth of Ex.A.2 and the correctness of the decree cannot now urge the same is not sustainable for the reasons already pointed out, in view of the Order 41 Rule 22 CPC.

88. The learned counsel for the plaintiff contended that the defendants could not claim that the plaintiff was not ready to perform his part of the agreement of sale and that the plaintiff was not ready and willing. He submitted that such a plea was not taken by the defendants in the written statement and did not suggest to the witnesses of the plaintiff and that it, therefore, was not open for the contesting defendants to claim that the plaintiff was not ready and willing to perform his part of the agreement of sale. I may straightaway point out that the case of contesting defendants primarily is that Ex.A.2 is false and cannot be accepted. Consequently, alternative claim that the plaintiff has not established his readiness and willingness is merely an additional ground.

89. The plaintiff, apart from contending that he was always ready and willing, had also produced his account books showing his financial capacity to perform his part of the agreement of sale and also produced his bank account under Ex.A.4. The learned counsel for the plaintiff drew my attention to Section 19 (b) of the Specific Relief Act and pointed out that the plaintiff can seek for specific performance of agreement of sale against anyone except a bona fide purchaser without notice. Section 19 (b) adumbrates that specific performance of a contract can be enforced against any person except against a transferee for consideration in good faith and without notice of the original contract. It, therefore, is evident that the plaintiff can seek for specific performance of the agreement of sale against the defendants 6 & 7 if he could show that defendants 6 & 7 were aware about the earlier transaction of the plaintiff with defendants 1 to 5 and also if Exs.A.5 to 9 were not bona fide. To the extent of the sales in favour of the defendants 6 & 7 under Ex.A.5 to A.9, the plaintiff, however, did not contend that the transactions are not bona fide. The plaintiff urged that defendants 6 & 7 were aware about the agreement of sale under Ex.A.2 and the defendants 6 & 7, consequently, were not bona fide transferees without notice.

90. The learned counsel for the plaintiff referred to the evidence of PWs.2 & 3. It is stated that both the mother of defendants 6 & 7 as well as the husband of the sixth defendant (DW.1) were informed about Ex.A.2 and that defendants 6 & 7 were aware about Ex.A.2 by the time they purchased the property under Ex.A.5 to A.9. First, I have not accepted that Ex.A.2 is proved. Consequently, there is no proof that defendants 6 & 7 were aware about Ex.A.2. The evidence that the mother of defendants 6 & 7 and the husband of the sixth defendant were informed about Ex.A.2 is not proved as the evidence in that connection is not satisfactory. I am constrained to hold that the plaintiff failed to show that the defendants 6 & 7 were vendees with due notice. In the absence of proof to the contrary, I have no hesitation to hold that defendants 6 & 7 were bona fide vendees without notice (even if Ex.A.2 were true).

91. The learned counsel for the plaintiff contended that the compensation referred to u/s.21 (1) of the Specific Relief Act is in addition to the claim of specific relief. Section 21 (1) ordains that a plaintiff seeking for specific performance of a contract can seek for compensation for breach of contract either in addition to or as a substitute for the specific performance. He submits the compensation sought for and awarded by the trial court should have been in addition to specific performance, but not lieu of specific performance. His contention is that as the Court found that defendants 1 to 5 committed breach of the agreement of sale, specific performance of the same should automatically be awarded.

92. The learned counsel for the plaintiff referred to Section 21 Explanation, which contemplates that the contract becoming incapable of specific performance, does not preclude the Court from exercising its powers u/s.21. There is no dispute regarding the power of the court to order for specific performance. In view of Section 20, Specific Relief Act itself, the court is vested with discretionary powers to grant specific performance or grant alternative relief, albeit such discretion is expected to be exercised judiciously. The plaintiff failed to show trial court did not exercise its discretion judiciously. The trial court visualized that it would be lifting floodgate litigation by ordering specific performance where defendants 1 to 5 already executed sale deeds in favour of defendants 6 & 7 and had already put defendants 6 & 7 in possession of the property. I, therefore, agree with the view of the trial court that this would not have been a fit case for grant of specific performance, even if the plaintiff had proved his case.

93. The agreement of sale between the plaintiff and defendants 1 to 5 allegedly was entered into in November,

1981. There is any amount of escalation of prices of real estate. The plaintiff contended that he has no intention or desire to cause loss to the defendants taking advantage of the escalation of prices. The learned counsel for the plaintiff submitted that the plaintiff is ready to pay 20 times the agreed price for the property covered by Ex.A.2. The learned counsel for the plaintiff also went a little further and submitted that the plaintiff is even willing to take 1/3rd of the vacant site only, out of the premises covered by Ex.A.2 had 20 times the value of the agreement of sale.

94. In this context, I may point out that the entire area owned by the Velagapudi Venkata Ramaiah as well as defendants 6 & 7 was the subject matter of Ex.A.2. However, the Mill was constructed in part of the site. It is not clear whether the total extent of the site is 950 ankanams or the vacant part alone is 950 ankanams. Each ankanam is 8 square yards. 950 ankanams is equivalent to 7,600 square yards. 1/3rd of the same would be 2,533 square yards or 317 ankanams. It would appear that the plaintiff is seeking specific performance in respect of this part of the property. I have no hesitation to record that the offer of the plaintiff to take the property by way of specific performance by paying 20 times of the value as shown in Ex.A.2 is a generous offer, albeit 20 times the value as shown in Ex.A.2 would be far less than the present market value of the property. If the plaintiff proved Ex.A.2, I would have considered this offer of the plaintiff a tempting offer to order for specific performance in favour of the plaintiff. However, for the reasons already stated, it is found that the plaintiff has failed to prove Ex.A.2. Once the plaintiff failed to prove Ex.A.2, edifies of the plaintiff’s case crumbles as the super structure was built upon Ex.A.2 as the basis.

95. A valiant attempt is made by the plaintiff to show that the defendants admitted Ex.A.2. The learned counsel for the plaintiff contended that the second defendant did not sign the written statement as he was away at Kurnool at the time of the commencement of the lis. I may point out that the defendants 1 to 5 remained ex parte in the suit. It is not as though the second defendant could not sign the written statement filed by the defendants 1 to 5. Further, in para 21 of the written statement of the defendants 6 & 7, it was contended that Ex.A.2 was brought up by the plaintiff, in connivance with the defendants 1 to 5 and R.V. Krishnaiah.

96. Defendants 6 & 7 never admitted that Ex.A.2 was true. I would venture to repeat that assuming that Ex.A.2 was true, it becomes unsustainable as Ex.B.5 was also found to be true which is prior to Ex.A.2. However, the plaintiff would have been entitled to damages in such an event. Where the plaintiff failed to prove Ex.A.2, the plaintiff cannot show the averment in the written statement of defendants 6 & 7 as admission on the part of the defendants 6 & 7. As already pointed out, defendants 6 & 7 did not admit the existence of Ex.A.2, but claimed that Ex.A.2 was brought up. The learned counsel for the plaintiff also tried to show that the case of the plaintiff has been indirectly admitted in part by the defendants 6 & 7 through their written statement. In para 24 of the written statement, defendants 6 & 7 denied the allegation that they removed the machinery from the premises, inter alia pointing out that the allegation was “not entirely true or correct”. The learned counsel for the plaintiff submitted that the defendants 6 & 7 averred that the claim is not entirely correct, thus agreed that the claim was partly correct. I am afraid that a reading of the entire written statement and even the reading of entire para-24 of the written statement of defendants 6 & 7 does not create an impression that defendants 6 & 7 were admitting the case of the plaintiff partly or fully on any aspect. The learned counsel for the plaintiff seeks for drawing an adverse inference for the non-examination of defendants 1 to 5. He placed reliance upon Vidhyadhar v. Mankikrao in support [4] of his contention. The Supreme Court observed that when a party to a suit did not appear as a witness and did not submit himself to cross-examine, a presumption u/s.114 illustration (g) of the Evidence Act could be drawn that the case set up by such a party was not true. This decision relied upon by the learned counsel for the plaintiff has no application to the present case, where the alleged executants of Ex.A.2 remained ex parte and did not file written statement. The question of drawing an adverse inference against the case set up by them does not arise in that background. Defendants 1 to 5 remained ex parte and allowed the plaintiff on the one side and defendants 6 & 7 on the other side to quarrel with each other. Consequently, this decision has no application.

97. In Chandrakantaben v. Vadilal Bapalal Modi [5] , the question of relevancy of the account books came up for consideration. It was observed that entries in account books without support of primary evidence need not be accepted. I am afraid that this decision has no relevance in the present case. Indeed, various account books were placed in the Exhibit-X series. However, these account copies do not have any primary relevance. At any rate, in view of the observation of the Supreme Court in this case, these documents can be rejected. Neither the case of the plaintiff nor the case of the defendants stands weakened even if the documents in Exhibit-X series are rejected. In this very context, the learned counsel for the plaintiff also placed reliance upon Rajesh Gothi v. Grandhi Padmanabhan . It was observed in that case that income [6] tax returns subsequent to the filing of the suit did not carry much of evidentiary value. Again, where the documents in X series are not considered for deciding the present case, considering or not considering income tax returns after the filing of the suit does not arise.

98. With reference to onus, the learned counsel for the plaintiff placed reliance upon R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab . In that case, [7] it was observed on the strength of Section 19 of the Specific Relief Act that the bona fide purchaser in good faith for value without notice of the original contract is protected, that such a protection is in the nature of exemption to the general rule and that onus of good faith was on the purchaser. There are no two opinions that it is for defendants 6 & 7 to show that they are bona fide purchasers without notice for valuable consideration, in the event Ex.A.2 is established. As already pointed out, Ex.A.2 has not been proved. Added to it, I have already mentioned reasons for considering defendants 6 & 7 have established that they were bona fide purchasers for valuable consideration without notice. While I agree with the submission of the learned counsel for the plaintiff that onus is upon the purchaser to show that he is a bona fide purchaser without notice, I consider that the defendants 6 & 7 discharged this burden, which rested upon them.

99. The learned counsel for the plaintiff submitted that in view of relative hardship, the claim of specific performance of the plaintiff deserves to be accepted. He placed reliance upon Maddu Bhimarao v. Nellemilli Jakaraiah [8] in support of his contention. Referring to Section 16 (c) Explanation (ii) of the Specific Relief Act, the court held that a person seeking the benefit of specific performance of a contract must manifest that his conduct has been blemishless throughout to entitle him to the specific relief and that court would be entitled to grant the relief of specific performance on the basis of the conduct of the person seeking the relief. It is the contention of the learned counsel for the plaintiff that the plaintiff exhibited sterling character, so much so, the case of the plaintiff for specific performance deserves to be accepted. I am afraid that the very claim of the plaintiff that the plaintiff obtained Ex.A.2 is disproved which directly or indirectly shows that the plaintiff had not come to the court with clean hands. The question of denying the claim of the plaintiff by applying the equitable principle that one who goes to equity shall go with clean hands, however, does not arise in the case of the plaintiff for the reason that the plaintiff failed to establish Ex.A.2 itself. The equitable principle would have come up for consideration if the plaintiff had proved Ex.A.2 only and not otherwise. The learned counsel for the plaintiff placed reliance upon Veeramareddy Nagabhushana Rao v. Jyothula Venkateswara Rao , Prakash [9] Chandra v. Angadlal [10] and Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak in support of his claim [11] that where the plaintiff proved Ex.A.2, the plaintiff would be entitled to specific performance of Ex.A.2. The principles laid down in these decisions are well settled and are binding but the question of applying these principles would have arisen if the plaintiff had proved Ex.A.2. As the plaintiff failed to prove Ex.A.2, these decisions became inapplicable.

100. The learned counsel the contesting defendants urged that there is no justification for the plaintiff to seek for specific performance of Ex.A.2 agreement of sale, even if Ex.A.2 were true, on the ground that the plaintiff merely paid ` 10,101/- under Ex.A.2 and that the value of the property would be in millions at present. To obviate the situation, the plaintiff chose to offer 20 times the value as in Ex.A.2 and also offered that the plaintiff would be satisfied if 1/3rd of the vacant area (after deducting the built up area) is conveyed in favour of the plaintiff.

101. The learned counsel the contesting defendants pointed out that the relief sought for could not be granted in the absence of payment of present market value, as observed by the Supreme Court in Nirmala Anand v. Advent Corporation Pvt. Ltd [12] . The Supreme Court observed that the party seeking for specific performance must be ready to pay the market value of the property. Evidently, the plaintiff is not ready to pay the market value for the 1/3rd share of the property. What all he offered is 20 times the agreed price as in Ex.A.2. In view of Nirmala Anand, even if Ex.A.2 were proved, the plaintiff would not have been entitled to specific performance. I n Pratap Lakshman Muchandi v. Uddavadas Wadhwa , the Supreme Court observed that [13] it would not be just and proper to allow specific performance of an agreement of sale when the same was sought to be enforced more than 25 years after execution of the agreement of sale. I n Muthusami (dead) by LRs v. Angammal [14] , the Supreme Court considered that where specific performance would cause hardship to the vendor, the discretion to order for the specific performance should not be exercised in favour of the vendee. It is the contention of the learned counsel for the defendants that even if the agreement of sale under Ex.A.2 were proved, the plaintiff, consequently, would not be entitled to specific performance of the agreement of sale and that as the agreement under Ex.A.2 itself was not proved, the plaintiff was not entitled to specific performance of the same.

102. In conclusion, I hold that while the contesting defendants only prima facie but clinchingly established Ex.B.5, the plaintiff failed to prove Ex.A.2 agreement of sale. Consequently, the plaintiff is not entitled to specific performance of the very agreement of sale. The trial court was incorrect in holding that Ex.A.2 was proved. Consequently, the decree for refund of ` 10,101/- and payment of compensation at ` 40,000/- are incorrect and are liable to be set aside. Consequently, A.S.No.470 of 1991 laid by the appellants as the legal representatives of the plaintiff is dismissed and A.S.No.3175 of 1992 laid by defendants 6 & 7 and continued by their legal representatives is allowed. O.S.No.1 of 1982 accordingly is dismissed. There shall, however, be no order as to costs. ________________ K.G. SHANKAR, J Date: 24.02.2012 Isn

103. Heard the learned counsel for both sides further on the question of refund. Corrigendum to the extent the question raised by both the learned counsel.

104. Learned counsel for the appellant in A.S.No.470 of 1991 made an oral request to permit to move the Supreme Court by way of appeal.

105. This question shall be considered at the time of disposal of the contentions raised by the learned counsel on both sides on other aspects in respect of which, the matter is reserved today. _________________ K.G. SHANKAR, J Date: 24.02.2011 AK

106. The learned counsel for the plaintiff sought for refund of ` 10,101/- paid by the plaintiff to defendants 1 to 5 through Ex.A.2 together with interest thereof. He also invited me to pass orders on payment of ` 40,000/- constituting compensation awarded by the trial Court. Defendants 6 & 7 questioned the award of compensation by filing A.S.No.3175 of 1992. I have passed the main judgment allowing A.S.No.3175 of 1992. The question of plaintiff receiving the compensation amount of ` 40,000/- from defendants 1 to 7 therefore does not arise, much less with interest.

107. Inasmuch as the claim is about ` 10,101/- paid through Ex.A.2, I disbelieved Ex.A.2 through the main judgment. When Ex.A.2 itself is disbelieved, the question of considering that the plaintiff p a i d ` 10,101/- under Ex.A.2 does not arise. Consequently, the oral request of the plaintiff to pass specific orders regarding the refund of advance of ` 10,101/- by the plaintiff to defendants 1 to 5 does not arise. The necessary corollary is that the plaintiff cannot seek interest, much less at 12% per annum over the amount of ` 10,101/- which itself is not decreed in favour of the plaintiff. Consequently, the oral request of the plaintiff to pass specific orders regarding the advance/earnest money of ` 10,101/- together with interest thereof and compensation at ` 40,000/- together with interest thereon does not arise, as the same are covered by the impugned judgment. The request of the learned counsel for the plaintiff accordingly is rejected.

108. The learned counsel for the plaintiff also made an oral application seeking permission to move the Supreme Court. I do not see any substantial question of law of general interest involving interpretation of law so as to accord permission to plaintiff to move the Supreme Court.

109. Accordingly, the request to permit the plaintiff to move the Supreme Court is rejected. _________________ K.G. SHANKAR, J Date: 02.03.2011 Isn [1] [2] [3] [4] [5] [6] [7] [8] [9] (1999) 7 SCC 435 2003 (4) ALD 555 2008 (2) JT 585 AIR 1999 SC 1441 AIR 1989 SC 1269 2007 (2) ALD 824 AIR 2001 SC 1658 2008 (1) ALD 202 2011 (2) ALD 629 [10] [11] [12] [13] [14] AIR 1979 SC 1241 (2010) 7 SCC 717 AIR 2002 SC 2290 AIR 2008 SC 1378 AIR 2002 SC 1279