NALLAM SETA MAHALAKSHMI Vs. TALARI VIJAYALAKSHMI

JUDGEMENT

(1.) This is an appeal by defendants 1 to 3 against the judgment and decree granted by the Subordinate Judge, Bhimavaram, West Godavari District dated 25.8.1986 made in O.S. No.227 of 1980 wherein the learned Subordinate Judge decreed the suit of the plaintiff for specific performance of agreement of sale dated 10.7.1980.

(2.) For the sake of convenience, hereinafter the parties are referred to as they were arrayed before the Court below.

(3.) The plaintiff filed the suit to enforce the specific performance of agreement of sale dated 10.7.1980 to sell the house including the open land of Ac.0.171/2 cents within Bhimavaram Municipal Area; for delivery of vacant possession after execution of sale deed by all the defendants or in the alternative to direct the defendants 1 to 3 to execute the sale deed of their 17/21 share in the property and for partition of the said share and separate possession; in the alternative, if the said decree cannot be granted, for return of Rs. 10,000/- paid as advance to defendants 1 to 7 with interest at 12% per annum and for awarding Rs.75,000/- towards damages as compensation for the loss. First defendant is the mother of defendants 2 to 7 and defendants 2 and 3 are the sons of late Nallam Ramarao and first defendant, whereas defendants 4 to 7 are their daughters and were not parties to the contract entered into by defendants 1 to 3 and did not subscribe their signatures to the agreement of sale under Ex.A.1, but were added as defendants 4 to 7 by plaintiff claiming that the contract was nevertheless binding on them on the ground that the first defendant, who is the mother of defendants 2 to 7 promised that defendants 4 to 7 will join along with them in execution of sale deed. It is pleaded by the plaintiff that the suit schedule property is a joint family property of late Ramarao and his two sons, defendants 2 and 3, and on the death of Ramarao, defendants 1 to 3 wanted to sell the suit schedule property for the purpose of discharging their mortgaged debt due to Bhimavaram Co-operative Urban Bank, apart from discharge of their sundry debts and for effecting repairs to their residential house and also for the purpose of purchasing landed property. Plaintiff accepted to purchase the property at Rs.85,000/- settled after due bargain with the defendants 1 to 3 and paid an amount of Rs.3,000/- as part of sale consideration to them and obtained agreement of sale executed by them on 10.7.1980 under Ex.A.1 on even date. As per the agreed terms and conditions, plaintiff has to make ready the balance of sale consideration of Rs.82,000/- within three months and the defendants on their turn have to see that the amount due to the Bhimavaram Co-operative Urban Bank would be discharged and after such discharge the balance amount would be payable to the defendants. In the event of plaintiff fails to arrange the balance of sale consideration and delays the execution of sale deed, plaintiff had agreed to pay interest at the rate of 12% per annum till she obtains the registered sale deed from the defendants. On plaintiff making balance of sale consideration ready and on informing the defendants 1 to 3 if there is any delay in getting the defendants 4 to 7 to join in execution of the sale deed, the defendants are responsible for the loss and they can be proceeded both civil and criminal action. After entering into the said agreement, an amount of Rs.7,000/- was again paid by plaintiff on 17.7.1980 to enable the defendants to discharge the loan amount availed with the Bhimavaram Co-operative Urban Bank vide endorsement under Ex.A2 and discharged the loan to the bank of Rs.4,258.25 ps. under the receipts Exs.A.5 to A.7. When plaintiff made ready the balance of sale consideration in August 1980 and informed the same to defendants 1 to 3 for receiving the same and for execution of registered sale deed, defendants 1 to 3 postponed the matter promising to procure the presence of defendants 4 to 7. In the meanwhile as the plaintiff came to know that defendants 1 to 7 intended to sell the schedule property in favour of defendants 8 and 9, she got issued a registered notice on 19.8.1980 to defendants 1 to 3 and 8 and 9 calling upon defendants 1 to 3 to execute the registered sale deed as agreed by receiving the balance of sale consideration. Defendants 1 to 3 after receiving the notice, sent a reply on 17.10.1980 alleging that the plaintiffs husband induced them to execute the sale agreement and made them to believe that defendants 4 to 7 would join them at the time of execution of sale deed, though they were not willing to do so. They also stated that defendants 8 and 9 had been residing in the schedule house for the past five years. Hence, the plaintiff filed the suit.