SETHUBAI Vs. HANUMANTHA RAO

JUDGEMENT

(1.) This is first defendant's second appeal against the judgment and decree passed by the District Judge, Kolar, in R.A.No.4 of 1965 affirming the judgment of the Civil Judge, Kolar in O.S.2 of 1961 decreeing the suit with a modification in regard to the award of mesne profits.

(2.) The facts briefly stated are these; PW.3 A. Hariachar, holder of general power of attorney, Ext.P4 executed by D. Hanumantha Rao the plaintiff and his deceased father D. Ramachandra Rao, has filed the suit for specific performance directing the first and the second defendants to execute a sale deed in favour of the plaintiff in respect of the suit schedule, properties, failing which, the Court may be pleased to execute the said deed acting on behalf of the defendants and also for recovery of possession and mesne profits.

(3.) The plaintiffs case is that he is a Government servant at Bangalore and that he was not in a position to prosecute the suit in person. His further case is that he along wiht his father executed a registered power of attorney Ext.P4 on 29-12-1957 in favour of his father-in-law Hariachar. The relief of specific performance is sought against one Gundamma grand mother of the first defendant and mother-in-law of the second defendant who died before the suit was filed. It is the plaintiff's case that Gundamma was the owner of the suit schedule properties. She had borrowed a sum of Rs.5,550 and some other amounts by mortgaging the suit schedule properties in favour of the father of the plaintiff and delivering possession to him. In all, she owned Rs.5,807 by executing a deed of agreement of sale which is marked as Ext.P2 in favour of Rarnachandra Rao on 6-7-1957. Thereafter, as the parties found that Ext.P2 was executed on a paper which was insufficiently stamped, she executed another deed of agreement of sale dt.20-9-1957 in favour of the plaintiff Hanumantha Rao agreeing to sell, the suit schedule properties within 20-1-1958. On 29-12-57 Rarnachandra Rao and Hanumantha Rao the plaintiff, executed a general power of attorney in favour of PW.3 Hariachar to take suitable steps to get the agreement of sale registered and also to get the necessary sale deed executed by Gundamma in favour of Hanumantha Rao. Gundamma failed to get the sale deed Ext.P1 registered. Proceedings were instituted before the Sub-Registrar and the District Registrar and finally the District Registrar by an order passed in Registration Appeal No.2 of 1959 directed the Sub-Registrar to register the document Ext.P1 and accordingly it was registered. Then the plaintiff in performing his part of contract was ever ready and willing to perform the remaining part of the contract relating to the agreement of sale. Since the executant of the sale agreement in spite of repeated demands failed to execute the sale deed in favour of the plaintiff, the present suit was filed by the general power of attorney holder Hariachar against defendants 1 to 7. It may be mentioned that at the time of the suit, Gundamma was no more; the first defendant Sethubai is her grand-daughter and the second defendant is her son-in-law. Defendants 3 to 7 have been impleaded in the suit as the properties had been subsequently sold to them. In these circumstances, the plaintiff has sought the relief of specific performance of the contract entered into between Gundamma and the plaintiff on 20-9-1957 and for possession and mesne profits.