Sri Dharmesh D.K. Jaiswal representing Sri v. Ramchander Goud

Judgment

(Per Hon'ble Smt. Justice Tiru la Deui Eada) This is an appeal hled by the appellant being aggrieved by the judgment and decree, dated 04. 2007, passed in O.S.No.401 of 2005 by the learned III Additional hief Judge, City Civil Court, Hyderabad (for short "the trial Court")

2. The appellant herein is the de ndant No.3, respondent No.1 is the plaintiff, respondent Nos.2 to 5 are the defendant Nos. 1, 2,4 and 5 before the trial Court and the arties herein are referred to as they were arrayed in the suit befo e the trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before schedule property bearing municipal e trial Court is that the suit Nos.1O-2-317 I 5l l, 512 and 5/3, situated at Vijayanagar Colony, yderabad admeasuring 10O0 Sq.yards was leased out by H.E.H., e Nizam, The Government to Major Shankar Lal, by virtue of re stered deed of lrase, dated

16.02.f 953 and that the Governm nt of Andhra Pradesh has

issued orders vide G.O.Ms.No.46 d ted 02.O7 .2005, converting leasehold rights to lree hold on paym nt of amounts to the Andhra 2 AK5,J & ETD,I CCCA No.262 2007 Pradesh Housing Board. It is further averred that the defendant Nos. 1 to 3 who are the sons of late Major Shankar Lal have partitioned the said property among themselves which was reduced into writing undcr a Memorandum of Family Arrangement Deed dated I 0.02.1996 and that the defendant Nos. 1 to 3 agreed to sell the mulgies in the suit schedule property which were allotted to defendant Nos.I to 3 bearing No.lO-2-317/Slt, 10-2-317 /Sl2 &" IO-2-317 /5/1 and in addition to that the 3'd defendant had agreed to sell the portion behind thc Mulgi bearing No.tO-2-3tZ /S/\ t.e. open land (totally admeasuring 357.88 Sq.yards allotted to 3.a defendant), situated at Vijayanagar Colony, Hyderabad and thus, defendant Nos.1 to 3 have entered into agreement of sale for a total sale consideration of Rs.32,40,000/- @ Rs.3,6O,OOO/- per mulgi and the balance amount towards open land bchind the mulgies, as such, the agreement of sale was executed on 14.12.2OO4. Pursuant to the agreement of sale, the plaintiff has paid the advance sale consideration of Rs. l2,tO,OOO/- and that the receipts were executcd by them. He further submitted rhat as per the terms of the agreement of sale they had to deliver vacant possession of the property by evicting the tenants in the mulgies but the defendants have been evading the plaintiff with a view to gain illegally. lt is his case that he is ready with the balance sale consideration and has been alq.ays ready and rvillir-rg to perform his ./ 3 AKs,J & ETD,] CCCA No.262 2OO7 part of contract. He further averred that defendant Nos.1 to 3 are liable to pay amount to the Govern ent as per the G.O.Ms.No.46 but in the event if they failed to pai, he amount the plaintiff seeks the leave of the Court to permit h to pay the amount to the Housing Board to get the suit sched le property as free fold. Since the defendants have not come fo d to execute the registered sale deed at their request which w finally made on 26.10.2OO5 he got issued a legal notice dated 0 1 1.2005 but in vain. Hence, the suit.

4. The defendant Nos.1 and 2 ha e filed their written statement admitting the execution of agreeme t of sale but stated that the suit is premature and that the plai tiff was not ready and willing for getting the sale deed registered in his favour. They further submitted that they were ready and illing to execute the sale deed in favour of the plaintiff and they fu her submitted that there is a novation of contract and under the novated contract the plaintiff had agreed to pay a sum of Rs.l0 khs more to defendant No.3. They denied to have agreed to get the tenants evicted from the premises. They stated that they hav agreed to sell the property in as is whereis condition. Thev furthe denied that the father of the plaintiff has approached them on 2 .10.2005 for execution of sale deed. They have admitted the legal notice issued by the plaintiff, ) \ 4 AKS,J & ETD,I CCCA No.262 2007 but they submitted that they have immediately called the plaintiff and discussed with him and that the plaintiff has agreed to pay Rs.10 Lakhs extra over and above the agreed sale consideration to the 3.d defendant. They further submitted that they are ready to refund the amount paid by the plaintiff in the ei,ent the plaintiff does not agree for the novated contract.

5. Defendant No.3 has Iiled written statemen[ denying the agreement of sale itself. He has admitted that the property is a leasehold property existing still in the name of their fathcr and he has also admitted that G.O.Ms.No.46 has been issued by thc Government. He has denied the partition among the legal heirs. He further stated that he raised tin sheds in the open area of the suit schedule property to conduct and carry on his profession of taking tuitions. He has also denied the alleged sale consideration and the payment of advance amount. He alleged that the agreement ol sale is a false, fabricated and creatcd document in collusion with defendant Nos. 1 and 2 and in order to cause loss to the defendant No.3 who is not in good terms with his brothers due to long standing family disputes. Thus, hc denied the very execution of agreement of sale dated 14.12.2014 rn favour of the plaintiff. He further denied to have executed any receipt in favour of the plaintiff. He further denied to have agrcccl to get the tenants L 5 AKS,J & ETD,I CCCA No.262 2007 evicted from the suit schedule proper and he denied the issuance of legal notice in his favour. Thus, pr ed to dismiss the suit

6. The defendant Nos.4 and 5 the tenants of the suit schedule property. Their written st tement is to the effect that they have been paying monthly re ts to the landlords having obtained the property for rent from ajor Shankerlal and his sons and that as on date there is no amo t due by them towards the payment of rents and that they are u necessarily impleaded in the suit as no relief is claimed against th

7. Based on the above pleading the trial Court framed the following issues for trial: " 1) Whether the suit is bad relating to both parties u sale? joinder of causes of action der separate contracts of 2l s) 4) s) 6) Whettrer defendalts 1 an vacated from the property? 2 agreed to get tenants Whether the plaintiff is re part of contract reiating to and willing to perform his efendants 1 atd2? Whether the plaintiff agre Rs. 1O La-khs to D3? Whether 3.a defendant a]o entered into contract of s property? to pay additional sum of with defendants 1 and 2 e with plaintiff for sale of Whether the plaintiff is en and incidenta,l reliefs as pr tled to specihc performance ed for? 7l To what relieP" 6 AKS,J & EIO,] CCCA No.262 2007

8. At the time of trial, PWs 1 and 2 were examined and Exs.A1 to A18 were marked on behalf of the plaintiffs. On behalf of the defendants, DWs 1 and 2 were examined and trxs.Bl & El2 were marked. Based on the evidence on record, the trial Court has decreed the suit as follows: That a decree of specific performance of contract of sale dt 14.12.2004 is granted directing the defendants 1 to 3 to execute a registered sale deed in favour of plaintiff. Clause-1 alone is subject to the condition of plaintiff depositing the balance of sale consideration of Rs.23,30,O00/- into court to the account of the suit; and the rlefendants 1 to 3 or the plaintiff himself, shall approach the government with market value, for getting the land converted to freehold rvithin a period of six months. It the plaintiff opts for obtaining sale deed, even without government converting the land into freehold he can obtain the sale deed from the court or from the defendants I to 3, on depositing of requisite starnp and registration charges in a period of 45 days after expiry of six months. If he did not opt for clause-(c) he is at liberty to withdraw the amount deposited by him and in that case, the decree remains u nexecu table. That the defendants 1 to 3 shall pay costs of the suit to the plaintiff besides bearing their own costs. The suit against defendants 4 to 5 is dismissed as unnecessary and without costs." 2 3 4 5 6

9. Aggrieved by the said judgment and decree, the present appeal is preferred by defendant No.3. 1O. Heard the submissions of Sri p.S.Rajasekhar, learned counsel for appellant, Sri Dharmesh D.K.Jaiswal, learned counsel representing Sri V.Ramachander Goud, learned counsel for respoqdent No.1, Sri M.A.Basith, learned counsel for respondent \ // '.:**!l.ir r, 7 AKS,J & ETD,I CCCA No.252 2007 Nos.4 and 5, Sri R.M.Vishwa K ma, learned counsel for respondent Nos.6 to 8

11. The learned appellant couns I has submitted that the judgment and decree of the trial C urt is contrary to law and weight of evidence and that the Cour below has made an error rn decreeing the suit. He further subm tted that the trial Court has wrongly appreciated the capacity of t e appellant and his brothers to enter into any contract for sale of t e suit schedule property. He furlher argued that the lease givc to Major Shankerlal is a conditional lease and that the lessee cannot selI the property and that the agreement of sale goes again t the terms of the lease deed, which is not tenable in the eye of la He further submitted that the trial Court failed to appreciate the said facts and also has ignored the legal position that no o e can pass on a better title than what he had. He submitted tha when the defendants do not have a perfect title, the question of c veying the same in favour of the plaintiff does not arise and thu , the agreement of sale rs a nullity in the eye of law. The couns I has further argued that the trial Court has passed a contingent decree which is unknown to Iaw. That the trial Court has visua ized certain conditions to be fulfilled and has passed the decree i such a way that even if the said condition is not fulhlled, the p aintiff can get the sale deed 8 AKS,J & ETD,] CCCA No.262 2007 executed, thus, the judgment is contrary to the legal principles and is liable to be set aside. He therefore, prayed to allow the appeal by setting aside the impugned judgment and decree.

12. The learned respondents counsel, on the other hand, has submitted that the trial Court has given a reasoned judgment and that the contingent contracts are valid and the agreement ol.sale in the present case is one such a contingent contract and that the trial Court has appreciated the said fact in a proper perspecLive. He further submitted that in terms of G.O.Ms.No.46, the defendant can sell the property after getting the freehold rights from thc Government and thus, they have executed the agreement o1 sale. The trial Court decree speaks about the said conditions mentioned in the agreement of sale and that it is tenable in the eye of law. He further submitted that the plaintiff has already paid an advance amount of Rs.12,1O,000/- to the defendant Nos.1 to 3 and has always been ready and willing to perform his part of contract but the defendants failed to comply with the terms of the agreement. He further submitted that the defendants have agreed to get the tenants evicted from the suit schedule property but have not initiated any steps in that regard and thus, failed to perform their part of contract. He therefore, submitted that the triar court has 9 AKS,] & ETD,I CCC-A No.262_2007 appreciated the evidence on record and has passed a reasoned judgment and thus, prayed to upho the same.

13. Based on the above rival sub issions, this Court frames the following points for consideration : 1) 2\ 3) Whether the agreement true, valid and binding o f sale dated 14.12.2004 is the defendants? Whether the plaintiff i specilic performance? entitled to a decree of Whether the judgment is sustainable in iaw an d decree of the trial Court under the facts? 4l To what relieP

14. POINT NOS.l AND 2: a) The contention of the appell t herein is that he has never entered into an agreement of sale d ted 14.12.2004 and that the defendant Nos.1 and 2, in collusion th the plaintiff have filed the suit on false grounds. The admitt facts in the present case are that the suit schedule property is a asehold property given by the H.tr.H., The Nizam in favour of Major Shankerlal and that defendant Nos.l to 3 are the sons f Major Shankerlal. The said lease deed is under Ex.A16. A p rusal of [tre said lease deed reveals that it is executed by the vernment in favour of Major Shankerlal and there are certain co enants and under clause-7 it is mentioned as follows { \ 10 AKS,J & ETD,I CCCA No.262 2007 "7. Not to assign, transfer or sub-let the premises hereby demised without first obtaining in writing the permission of the Superintending Engineer, City Improvement Board. permission to sell the lease-hold rights in the premises hereby demised will be communicated only on pre-payment of the total market value of the premiscs demised either by the lessee or by thc prospective purchaser" b) Though the family arrangement was denied by dcfendant No.3 in his written statement, he has admitted the same in his cross examination. He has deposed that the house bearing municipal No.10-2-317/5/ 1 belongs to him and it consists of a tin shed and he is giving tuitions in that shed and he further stated that thc portion of defenclant No. I bears municipal No. 10-2_ 317 15/A and defendant No.2 was also allotted share in the same portion. Thus, it proves that there was some family arrangement among the family members of defendants but that does not have any impact on the validity of the agreement of sale. The lease deed itself clarifies that the lessee is not supposed to lease out, sell or alienate the property in any manner without the prior permission from the Government. c) A perusal of the agreement of saie fiied under Ex.A1 reveals that at Claust: No.6 it is mentioned in the agreement of sale ,,That the Purchaser shall in the event the Government direct payment of ma-rket value in respect of schedule property, shall pay the amount { 11 AKS,I & ETD,J CCCA No.262 2007 in respect of propert5r hereby agreed to be sold to get the property converted to freehold" and further C use No.8 reads as follows: That the Sale Deed will be this date, irrespective of the fact, w permission for freehold or not. H liberty to extend the time by mutual if the Purchaser pay any further amo pass valid receipts for the same". cuted within 6 months from ther the Government grants ver, both the parties are at nsent. It is lurther agreed that nts the Vendors hereby take to d) Thus, it is clear from the ter s of the agreement that the defendants have agreed to the ter that the purchaser i.e. the plaintiff shall pay the amount in r spect of the property to the Government in case if the Govern nt issues such direction. It was further agreed upon that the sa deed will be executed within a period of six months irrespective f the fact as to whether the Government grants permission fo freehold or not, which is contrary to G.O.Ms.No.46 and th lease deed under Ex.A16. G.O.Ms.No.46 is the policy decision taken by the Government to make the leasehold lands into ehold on collecting certain amounts fixed bv the government a period of one year. Unless the conditions stipulated are fulfilled the land cannot be converted into freehold the lessee will not be entitled to convey the title of the said land favour of any other person When it is clearly mentioned tha they have to obtain prior permission to lease out or alienate the property, the question of executing the sale deed irrespective of the land being declared as \ 12 AKS,] & ETD,] CCCA No.262 2007 freehold goes against the lease deed itself. If a condition of such nature is stipulated ignoring the terms laid dorvn in Ex.A16 lease deed and the G.O.Ms.No.46, thcn the agreement itself goes against the public policy, which is not tenable in the e1,e of larv. Any agreement which is against the pubtic policy is a vord agreement. e) It is pertinent to refer to Section 23 of the Contract Act with regard to the unlawful agreement, which is extractcd hereunder for the sake of reference: "23. What considerations and objects are lawfu l, ald rr",hat not.-The consideration or object of an agreemcr-rt rs lau{ul, unless- it is forbidden by law; or is of such a nature that provisions of any law: or is fraudulent ; or involves or implies injury to Court regards it as or the policy. if permitted, it woulci defeat the the person or propcrty (.,f another; immora.l, or opposed to public In each o[ these cases, the consideration or object of an agreement is said to be unla*{ul. Every agreemcnt of which the object or consideration is unlawful is void." f) Learned Counsel for respondent No. I relied upon a judgment of the Apex Court in Mrs.Chandnee Widya Vati Madden vs Dr. C. L. Katiai, & Othersl. In the said case, the plaintifls entered into a contract of sale and the deed of agreement had a covenant that the vendor shall obtain permission of the Chief Commissioner to the 1963 SCC OnLine SC 183 (' I :r.. I. 13 AKs,J & EID,J CCCA No.262 2007 transaction of sale within two month of the agreement, and if the said permission was not forthcoming within that time, it was open to the purchasers to extend the da or to treat the agreement as cancelled. The trial Court, flrst ap ellate Court and High Court have granted alternative relief in the aid case and when it reached the Supreme Court, it was held at an agreement of sale is executed but it cannot be spe ifically performed without permission or sanction of any au ority, then the suit can be decreed and the decree for specific erformance can be granted subject to obtaining such permi sion from the competent authority. g) In the present case, there was a specific term laid down in the agreement of sale stating that e n if the defendants failed to obtain the permission of the Govern nt to convert it into freehold property and if the purchaser is willi to buy the same, still the sale deed can be executed. Thus, the facts in the aforesaid decision defer with that of the presen case because in the present case there is condition stipulated hich says that even if the permission is not obtained by the de ndant, the sale deed can be executed at the will of purchaser. us, the cited decision is not applicable to the case on hand ( 14 AKS,J & EID,J CCCA No.262 2007 a' h) Learned counsel further relied on a decision of this High Court in Mattapalli Venkata Rao u. Kotla Alioetu Mangatagaramma2. lt was held by the High Court of Judicature at Hyderabad Lhat "in a suit for specifi.c paformance filed by the purchaser, the uerudor cannot put forutard the plea that he had_ no title or defectiue title, but if the surf is by the uendor, the purchaser can plead that the uendor had no title or had_ dekctiue title as a defence. The present suit is one filed bg the purchaser and. the plea nout put forth bg the appellant _lVo. I as to the defect in his title is unauailable to the appellanls and specifi.c perfonnance cannot on that ground be denied". In the case on hand, the primary contention of the defendant No.3 is that he never executed any agreement of sale and that without obtaining the permission of the competent authority the land cannot be alienated and further the Clause in the agreement which specifies that the even if the defendant fails to obtain permission from the competent authority, if the purchaser wishes, the sale deed can be executed by the defendants in favour of the purchaser. Thus, the plaintiff himself is very well aware of the incompetency of the clefendants in executing the sale deed without the prior sanction of the competent authority. Being very well aware of the status of the property, still the agreement of sale was executed. Thus, in the present case, the 1997 (1) A.P.t.J. 427 {HC) I l 15 AKS,I & ETD,J CCCA No.262 2007 defendant is not raising any new pl a of defective title, therefore, the cited decision is not applicable to the case on hand. i) Clause No.8 of the agreement sale under Ex.A1 invalidates the agreement itself. When the agre ent itself is invalid it cannot be said to be true and binding on t e defendants, thus it is held that the agreement of sale is not e, valid and binding on the defendants. j) The execution of the agreemen itself is denied by defendant No.3 while defendant Nos.l and 2 ha e admitted the execution but they have only contended to the ex nt that the plaintiff was not ready and willing to perform his part of contract. This probabilizes the contention of defendant No.3 th t defendant Nos. I and 2 are acting in collusion with the plaintiff. k) The counsel for appellants has also relied upon a decision of the Apex Court in P.Purushottam eddy v. Pratap Steels Ltd.3 ln the said case, the permission f the Government was not obtained within the stipulated time d the issue of readiness and willingness was not dealt with try e trial Court. Therefore, the High Court noted that there were th ee additional issues required t to be {ramed as to the maintainabi ty of suit, the readiness and t lzoozlz scc oee 7 16 AKS,J & ETD,J CCCA No.262 2007 l-' willingness of the parties and the entitlement of plaintiff to specific performance. Thus, the High Court has set aside the judgment and decree of the trial Court and remanded the case to the trial Court giving liberty to the parties to adduce evidence on the additional issues without amendment of pleadings. When the matter reached the Apex Court it was held that there is no necessit5r for remand in the said case. But as per the facts in the present case, the permission of the Government was not obtained and further there is also a condition stipulated in the contract that it can be registered even rvithout the permission. Further the readiness and willingness aspect was also discussed by the trial Court in the case on hand and the question of remanding the matter does not arise. Therefore, the cited decision cannot be applied to the facts and circumstances of the present case. l) Learned counsel for respondent No. 1/ plaintiff relied upon a decision of the Apex Court io R.C.Chandiok u. Chuni Lal Sa.bharwqla to putforth a point that the time is not an essence of contract with regard to immovable property. The said question did not fall for consideration in the present case. Therefore, the same is not discussed. I I 1970 (3) sCC 14O t7 AKS,J & ETO,I CCCA No.262 2007 m) The contention of the defenda t No.3 has always been that he has not affixed his signature on eement of sale and that it is a forged document. But the plai tiff has not chosen to lead evidence in this regard and he has n t taken any steps to send thc document to handwriting expert. T e plaintiff contends that the defendants have to get the proper registered on conversion to freehold property and the terms of reement of sale also reveals that the parties are very much a re about the status of the property being leasehold, it is men oned in the contract that on getting it into freehold property sale ccd shall be execute d. But in his cross examination, the plaintiff (Pw 1) has feigned ignorance stating that he does not know whet er the suit schedule property is a freehold or lease hold property s on date. He has admitted that the A.P.Government is the owne of the property. The plaintiff has stated that he has paid an amount of Rs.9,30,0OO l- to defendant No.3 out of the sale consi eration. But then it is elicited through him that he does not have a separate document in proof of the said payment to defendant N .3, except Ex.A6 which is a receipt for an amount of Rs. 1,3 ,000/ -. Thus, payment of Rs.9,3O,OOO/- to defendant No.3 by he plaintiff is not proved. 1 \ f 18 AKS,J & ETD,] cccA No.262 2007 ,:r..' - .-.) n) The plaintiff as pwl has also admitted that he mentioned in his plaint that the defendant Nos. 1 to 3 are liable to pay the amount to the Government under G.O.Ms.No.46. Hc furthcr admitted that Ex.Al which is the agreement ol. sale does not contain the above said clause. On the other hand, Ex.Al contains the Clause rhat the purch:rser (plaintiff) shall pay the amount if any required to be paid to the Government to get the land from leasehold to freehold. He further admitted that thc said statcment made by him in the plaint is false. o) One Harivadan Lal w.as examined as pW2 by the plaintiff who happens to be the uncle of defendants. The contention of the plaintiff is that PW2 signed as a witness on the agreement of sale under Ex.Al and thus, the evidence of the attcstor provcs his document. In the cross examination of pW2 it is elicited that defendant Nos.1 to 3 used to approach him for anv elderlv advise. He stated that he does not know the Settlemcnt deed but he has signed in it He admitted that the defendant Nos.I to 3 have no right to sell the suit schedule property as it is a leasehold property. Thus, the evrdcnce of pW2 is of no avail to the plaintiff to prove the validity of agrcement of sale. *n- tO. terms of the agreement/ Ex.A 1 itself are against law and contents of the Family I I 19 AKS,J & ETD,I CCCA No.262_2007 against the terms laid down in the I se deed/ Ex.A 16, the evidence of attestor does not validate the docu ent under Ex.A1 p) The learned respondent No. / plaintiff counsel has relied upon a decision of the Apex Court i M.L.Abdul Jabbar So,hib u. M.V,Venkata Sastri & Sonss putforth a point that the evidence of an attestor is enough to prove the execution of a document. It was held in the s d case that "the essential conditions of a valid attestation und r Section 3 of the Transfer of Property Act are that 1) two or re witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his sig ature; 2) with a view to attest or to bear witness to this fact e ch of them has signed the instrument in the presence of the ex cutant. It is essential that the witness should have put his signat animo attestandi, that is, for the purpose of attesting that he has een the executant sign or has received from him a personal ackno ledgment of his signature. If a person puts his signature on e document for some other purpose, for example, to certify that he is a scribe or an identifier or a registering officer, he is not an a testing witness". q) PW2 stated that all the efendants have signed the document, while defendant No.3 d nied to have signed on the s trls) r scc su: \ I AKS,I & ETD,] CCCA No.262 2007 <) document. When the executant himself denied his signature on the document, it is the duty of the plaintiff to take steps to send the same for thc opinion of an expert, which is not done in the present case. Thus, the evidence of the attestor does not add any strength to the plaintiffs case. r) The contention of the respondent No. l/plaintiff counsel is that in thc present case pW2 was examined as an attesting witness and the statcment in his cross examination that he does not kno,*, the contents of the document, would not invalidate the document. s) Learnecl counsel for respondent No. 1/plaintiff placed reliance on the decision of the Apex Court in Hemkunutar Bai u. Sumersingha to prove his contention. In the saicl case the main issue r,r,a s whethcr one Ratankuwarbai, an illiterate lady suffering from Cancer had executed a Sale deed and the Will. Trvo u,itnesses who signed thc document were examined in the said case. It was contended that both the witnesses have stated that they were not aware of thc contents of the document, when they signed as witnesses. It was held by the High Court that the witnesses need not necessarily know whzrt is contained in the document. Furthermore, u.hen these witnesses state that the Sub_Registrar has told the gist of the documents to the deceasecl then they " tzory<tarco nt I I 2l AKS,J & ETO,] CCCA No,262 2007 become aware of the nature of e documents at the time of registration thereon and the view of he High Court was uphetd by the Apex Court. It is pertinent to no in this regard that when the document is otherwise valid, the e dence of the attestor and the question of his knowledge about its ontents wciuld be considered It is already discussed supra that e document itseif is a void document. Thus, the question of at station and attestor knowing its contents and deposing in th t regard does not fall for consideration in this case. There re, the cited decision is not applicable to the case on hand t) Exs.B1 and 82 were marked th the conscnt of DW2 Ex.B1 is the photograph shown to him co sisting of the existence of one medical hall and the institute run them and he stated that the plaintiff runs his business in the na e and style of Prince Medical Hall, it is bearing municipal No. 1O 2-317 I 5 / A, it is elicited from him that the properties surrounding the suit schedule property are leasehold property and he does n t know whether some of the properties were converted into fre hold. Ex.B2 is the savings account of DW2 i.e. defendant No. , the said bank statement is marked with his consent. The cont tion of the plaintiff is that the defendant No.3 did not have much avings in his account but he has deposited an amount of Rs.2,5 ,OO0/- by cash on I5.12.2OO4 I I I I I I ; i I I 22 AKs,J & ETD,I CCCA No.262 2007 C., and that the said amount is deposited just because the defendant No.3 has received Rs.8,00,O00/- advance from the plaintiff on

15.12.2OO4. DW2 has ansrvered stating that he received the said amount of Rs.2,50,O0O/ - from his brother_in_law bV name Terkur Chandra Singh and that hc never received any amount from the plaintiff. It is pertinent to mention in this context that pW 1 admitted that he has not filed any proof to show that he paid an advancc amount of Rs.9,30,00O/- to defendant No.3. No prudent man would pay Rs.9,30,000/- without any receipt. Thus, the contention of plaintiff in this regard appears to be far from truLh. u) DW2 admitted that the lease hold properties can be converted into freehold properties as per G.O.Ms.No.46 and that if the requisitc amount is paid to the Government, the said conversion can be made. But the said admission of DW2 does not validate Ex.A 1 . His specific contention is that defendant Nos. 1 and 2 might have agreed to sell the suit schedule property under Ex.A I but he has never agreed. The defendant No.3 who is the appellant herein has denied the agreement of sale in its entirety and has further specifically denied to have received any amount under the agreement of sa1e. Though the plaintiff contends that defendant No.3 has received advance sale consideration, he has not filed any proof. 'lhe plaintiff further contends that defendant No.3 has 23 AKS,J & ETD,J CCCA No.262 2007 deposited some amount into his ac unt on receiving the advance sale consideration. The entry mad in the account of defendant No.3 under Ex.B2 cannot substa tiate the contention of the plaintiff. The said amount is d posited by cash, thus, the contention of plaintiff is not proved. v) Another contention raised by e plaintiff in his plaint is that he was always ready and willing to rform his part of contract and that he has deposited the balance s le consideration into his bank account and that it reflects the sa . [n proof of his contention, e he has filed the accounts statemen under Ex.A17. A perusal o[ Ex.A17 reveals that it is in the n e of his father Moolchand Chandrani and during his cross e nation he has stated that it is a joint account pertaining to lf and his father but the document does not reflect the said act. It is elicited in his cross examination that he is an income tax assessee for the past 10 years but he is not aware whether t e payment made by him to the defendants is reflected in the IT re ns or not. He admitted that he has not deposited the balance e consideration in the bank accounts held by him. Thus, the p tiff could not prove that he was ready with the balance sale con ideration. However, when the agreement of sale itself is held t be inva-lid the question of readiness and willing does not fa-ll fo \ consideration at a1l. I.. : I I 24 AKS,] & ETD,] cccA No.262 2007 w) Learned counsel for respondent No.i/plaintiff relied upon the decision of the Apex Court in Ram Lal v. Jarnail Singhz. In this case there was a delay of two years in filing the execution petition and a delay of four years in depositing the balance sale consideration. Then the Apex Court has hetd that the respondents are entitled to simple intere st @ 9o/o per annum from the date of judgment and ordcr passed by the Appellate Court trll the date of balance sale consideration is deposited. Thus, observing so they have allowed the appeal setting aside the order of the High Court and conhrming the orders of executing Court to <ieposit the balance sale consideration and to proceed with the specihc performance of suit. In the present case when the agreement itself is held to be void agreement, the question of depositing the balance sale consideration and proceeding with the specilic performance does not arise x) [rarnccl counsel for respondent No. l/plaintiff relied upon the decisions of the Apex Court in Kqnnappq. Chettiar a. Abbas Atis and Mir Abdul Hakeem Kho:n u. Abdul Mannan Khadrie. The contention o[ the respondent No.l counsel is that once an agreement of sale has been entered into between the parties, the defendant/vendor cannot turn around and take a plca of defective 3 9 2025 SCC Ontine 5C 584 (19s21 2 SCC 124 (1971) SCC Ontine AP 137 25 AKs,J & ETD,J CCCA No.262_2007 title. In the present case, the fact matrix is in such a way that the plaintiff also knows about the ited rights of the defendants over the suit schedule property ther, the defendant No.3 who is the appellant herein has denied e execution of the agreement itself. Admittedly, prior sanction o the Government is essential to proceed with the registration or ex ution of sale deed. It is a case where, the plaintiff is prett5r well a that the defendants do not have a perfect title and that they cannot execute the sale deed unless prior sanction is obtain from the Government and further, but still a Clause was incl ded in the agreement stating that the sale deed can be execute even if the permission is not obtained. It is reiterated at the st of repetition that the said Clause is against the condition sti ated in the lease deed and against the policy decision made the Government. Thus, the agreement/ Ex.Al goes against the ublic policy and is an invalid agreement. Therefore, the above cited decisions also are not applicable to the present case. y) In view of the foregoing di ssion it is held that the agreement of sale is not a valid doc ent and is not binding on the defendants. Thus, the plaintiff is no entitled to a decree of specific performance in pursuance of the aid agreement of sale. Point Nos. I and 2 are answered accord I I I l I r 26 AKS,J & ETD,] CCCA No.262 2007 t)

15. POINT NO.3: Learned counsel for respondent No.1/plaintiff relied upon the decisions of the Apex Court in Mgsore State Road l?ansport Corporation a. Mirja Khasim Ali Begto arrd Manjunath r. In Mysore Anandorppa tlrf Shiuappa Hanasi u. To ^r.n*ar State Road Transport Corporation's case, it was held that the relief of declaration is discretionary. It is well settled that if only the discretion is not exercised by the lower Court in the spirit of statute or fairly or honestly or according to the roots of reason and justice, the order of lower Court can be reversed by the Statutory Court. In Manjunath Anand.appa Urf Shiuappa llcncsi's case, it was held by the High Court that both the trial Court and the first Appellate Court refused to exercise their discretionary jurisdictions in favour of the plaintiff. It was held by the Apex Court that, the High Court should not have interfered therewith without arriving at a hnding that the discretion has been exercised by the Courts below on wrong 1egal principle. The respondent No.l/plaintiff counsel has relied upon both these decisions in support of his argument that unless discretion is exercised in a u,rong manner by the trial Court, the High Court cannot interfere with the same in a normal course. In the case on hand, it is found that the trial Court has passed a decree which is not only contingent in nature but aiso is found to be against the legal principle. It is already held in 'o 1t9l'11 z scc +st " 1uoo:1 ro scc:so ( 27 AKS,J & ETD,] CCCA No.252_2007 the discussion supra that the agree ent itself is invalid, in view of the clause specified therein, whic stipulates that the sale deed can be executed even without the ction that has to be obtained from the competent authority. Th decree also specifies the said clause which is not proper in the of law. Thus, it is opined that there is a material irregularity co mitted by the trial Court in exercising its discretion and thus, s Court is inclined to interfere with the same and it is held that th judgment and decree passed by the trial Court are not sustaina Ie in law and under the facts and circumstances of the case

16. POINT NO.4: In the result, the appeal allowed setting aside the judgment and decree, dated O4.06. O07, passed in O.S.No.4O 1 of 2005 by the learned III Additional hief Judge, City Civil Court, Hyderabad. No costs. Miscelianeous Applications, i any, pending in this appeal shall stand closed. Sd/. I. NAGA LAKSHMI JOINT REGISTRAR To, //TRUE CO SECTION OFFICER

1. The lll Additional Chief Judge, City any) ivil Court, Hyderabad.(with records, if One CC to Sri P. S. Rajasekhar, Adv te [OPUC] One CC to Sri Ram Milan Vishwakarm Advocate [OPUC] One CC to Sri V. Ramchander Goud, vocate [OPUC] One CC to Sri M. A. Basith, Advocate I PUCI 3 4 W b Two CD Copies , i,rG STAr€' o ? \r\q N5 1 6) \ * q * HIGH GOURT DATED: 1310612025 JUDGMENT+DECREE CCCA.No.262 of 2007 ALLOWING THE CCCA WITHOUT COSTS ( 7 116 IN THE HIGH COURT FOR TH STATE OF TELANGANA AT HYDE BAD FRIDAY, THE THIRTEE TH DAY OF JUNE TWO THOUSAND AN TWENTY FIVE PRESE T THE HONOURABLE SRI JUSTICE AND THE HONOURABLE SMT JUSTI HINAND KUMAR SHAVILI E TIRUMALA DEVI EADA CITY CIVIL COURT APPE L NO: 262 OF 2OO7 Between: Ram Mohan Lal Desai,, S/o. Late M years, Employee, R/o. t0-2-317l5, Vija jor Shankarlal, Hindu, aged aboul 42 nagar Colony, Hyderabad ..APPELLANT/3.d DEFENDANT AND

1. Prakash Chandrani S/o.Mool Chand handrani, Hindu, aged about 44 years, Business, R/o. 1 3-6-463/tu23, Ashokvi ar Colony, Tallagadda, Hyderabad P NTIFF/RESPONDENT/RESPONDENT

2. Madanmohanlal Desai, (Died per LR's RR- 6 to 8) S/o. Late Major Shankarlat, Rlo.10-2-317 15, Vijayanagar Colony, Hindu, aged about 57 years, Emplo Hyderabad.

3. Raj Mohanlal Desai S/o.Late Major S Employee Rlo.10-2-317 15, Vijayanaga 4. Mohammed Habeeb S/o.Mohammed, Rl o.1 0-2-317 I 512 and 3, Vijayanagar ankarlal, Hindu, Colony, Hyderab aged about 46 years, ad. uslim, aged about 70 years, Business olony, Hyderabad. Mohammed Shakeel S/o.Mohamm Rlo.10-2-317 l5l'1, Vijayanagar Colony, Habeeb, Muslim, aged 40 years, Hyderabad 6 Santosh Rani, Wo. Late Madan Moha R/o. H.NO. 10.2.31715, Vijaya Nagar Lal, Ag ,H e 52 years, Occ: Govt. Servant yderabad-57

7. Nikil Kumar Desai, S/o. Late Mada Mohanlal, Age 29 years, Occ: Pvt Employee, R/o.H. No. 10-2-317 I 5, Vlja nagar Colony, Hyderabad-57 B. Sparsha Mahendra, Wo. Abhijit Rai Aged 25 years, Occ: Housewife Hyderabad-27 ahendra, D/o. Late Madan Mohan lal, o. H.NO. 3-6-265/3, Himayatnagar, RR-6 to I brought on record as LRs Registrar (Enq.) in CCCAMP-79/12, D of the deceased R-1 as per Orders of .27.2.12

9. Mohammed Quadder Son of Late Mo Resident of 10-2-317 1512, Vijayanagar ammed Habeeb, Aged about 35 years, Colony, Hyderabad, Telangana State. 'l0.Mohammed Jabbar Son of Late Mohammed Habeeb, Aged about 33 years, Resident o'f 10-2-317 1512, Vijayanagar Colony, Hyderabad, Telangana State.

11.Adam Narender Son of Late Krishna Hari, Aged about 42 years, Resident of H.No. 12-1-481/29, Jagannath Temple, Asif Nagar, Hyderabad, Telangana State. (Respondent No's. 9 to 11 are impleaded as per Court Order dated i 3.06.2025, vide lA.NO. 1 ol 2021 in CCCA.No. 262 of 2007.1 ...RESPONDENTS Appeal filed under section 96 of CPC against the Judgment and Decree dated 04.06.2007 in OS.No.4O1 of 2005 on the file of the Court of the ill Additional Chief Judge, City Civit Court, Hyderabad. This appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of Sri P.S. Rajasekhar, Advocate for the appellant, Sri Dharmesh D.K. Jaiswal representing Sri V. Ramchander Goud Advocate for the Respondent No. 1, Sri M.A.Basith Advocate for the Respondent Nos.4 and 5 and Sri Ram Milan Vishwakarma, Advocate for the Respondent Nos. 6 to 8. This Court doth Order and Decree as follows:

1. That the City Civil Court Appeal be and hereby is allowed setting aside the judgment and decree, dated 04.06.2007, passed in O.S.No. 401 of 2005 by the learned lll Additional Chief Judge, City Civil Court, Hyderabad;

2. That there shall be no order as to costs in this appeal. Sd/. I. NAGA LAKSHMI JOINT REGISTRAR To, //TRUE COPY// SECTI OFFICER '1 . The lll Additional Chief Judge, City Civit Court, Hyderabad 2. Two CD Copies W HIGH COURT DATED: 1310612025 DECREE CCCA.No.262 of 2007 ALLOWING THE CCCA WITHOUT COSTS \ ,1A 1