VANIMISETTI ANIL KUMAR Vs. JAYAVARAPU KRISHNA MURTHY DIED

JUDGEMENT

(1.) This is an LPA filed by the defendants 2 and 4 to 6 against the judgment of the learned single Judge of this Court dt. 28.4.1994 passed in AS No.1207 of 1991 who confirmed the judgment and decree of the trial Court in O.S.No.65 of 1984. The parties will be referred to as they appeared in the suit as 'plaintiffs' and 'defendants'.

(2.) The facts on the basis of which the suit was filed were that the suit schedule property was the joint family property of the defendants. This suit schedule property along with adjacent terraced building was mortgaged to one Kola Rama Rao of Eluru for Rs.30,000/- on 17.7.1979 by the defendants for discharge of antecedent debts of the joint family. The defendants, with a view to shift their residence and settle down permanently at Tirunalveli Ashram in Tamil Nadu and in order to discharge the antecedent debts, wanted to dispose of their properties at Jangareddigudem and Tadepalligudem. Therefore, they published a notice in the daily newspaper of Andhra Prabha on 14.10.1980. On coming to know of this, the plaintiffs approached the defendants with a view to purchase the property at Jangareddigudem village. They were told by the 1st defendant that he was selling the property to discharge the antecedent debts and with a view to permanently shift their residence to Tirunalveli Ashram in Tamil Nadu. The suit schedule property was in a neglected condition, which required immediate repairs. Enquiries made bythe plaintiffs revealed that the defendants were indebted to Kola Rama Rao and others and the creditors were demanding the payments. After due enquiry, the plaintiffs were satisfied that there was necessity to sell the suit schedule property and approached the defendants with a view to purchase the same. The defendants and the plaintiffs are related to each other. After some negotiations, it was agreed between the parties on 31.8.1981 in presence of mediators that the defendants would sell the suit schedule property for Rs.1,02,900/- so that the defendants were able to discharge the mortgage debts. The defendants were supposed to discharge the mortgage debts out of the amount paid by the plaintiffs. An agreement of sale was executed by the 1st defendant for himself and as a guardian for 2nd defendant who was a minor, in favour of the plaintiffs on that day. The said agreement of sale was executed in presence of witnesses. An advance of Rs.22,900/- had to be paid at the time of agreement of sale. Out of the balance of Rs.80,000/- the plaintiffs had to pay Rs.10,000/- on or before 1.10.1981 and the balance of Rs.70,000/- had to be paid by the end of December, 1981. There was another condition stipulated in the agreement of sale that if the plaintiffs failed to pay the balance amount by 31.12.1981, it had to be paid with interest @ 1% per mensum. The extent of the site which was agreed to be sold is 566 sq. yards, but it was also agreed that if on measurements it was found to be less than 566 sq. yards, the consideration amount would be paid proportionately less. The site had to be measured before the registration. Possession of the property had to be delivered at the time of registration. There were some other terms and conditions in the agreement. The plaintiffs further contended that in pursuance to the agreement of sale the plaintiffs paid to the defendants Rs.22,900/- on 31.8.1981, Rs.15,000/- on 15.10.1981 through T.V.A. Narasimha Rao, Rs.5,000/- on 9.1.1982 in cash, Rs.10,000/- on 10.1.1982 through T.V.A. Jagannadham, Rs.3,000/- on 23.2.1982 in cash, Rs.3,000/- on 4.5.1982, Rs.3,000/- on 13.4.1982 by way of draft, Rs.12,000/- on 19.5.1982 through T.V.A. Jagannadham and Rs.5,000/- on 2.6.1982 in cash. All these payments were endorsed on the agreement of sale by the 1st defendant in his own handwriting and were signed by him. In all, the plain tiffs made payments to the tune of Rs.78,900/- to the defendants by 2.6.1982. The plaintiffs were always ready and willing to perform their part of contract, but the defendants were postponing on some pretext or the other. The 1st defendant had promised to obtain the mortgage bond back and execute a sale deed before leaving for Tirunalveli. As the defendants were away and living in Tirunalveli in Tamil Nadu, the plaintiffs could not secure the presence of the defendants to measure the site and arrive at the exact consideration to be paid and obtain a sale deed. After return of the 1st defendant from Tirunalveli, the plaintiffs requested him in presence of mediators to discharge the mortgage debt and get the site measured and receive the balance of consideration arrived at according to the terms of the agreement. The defendants did not comply with the request. On 12.9.1983 Kola Rama Rao of Eluru gave a notice to the defendants and the plaintiffs demanding payment of his mortgage debt. After receipt of the notice, the plaintiffs requested the defendants to discharge the mortgage debt and obtain the mortgage bond back and receive the balance of sale consideration from them and execute a sale deed in their favour, but the defendants did not give the discharged mortgage bond to the plaintiffs.

(3.) Thereafter the plaintiffs issued a notice on 21.11.1983 demanding the defendants to discharge the mortgage debt and adhere to the terms of the sale agreement. The notice was served on the 1st defendant on 30.11.1983.