PERI BHASKARARAO Vs. SATHI ADILAKSHMI

JUDGEMENT

(1.) This Appeal is preferred by the unsuccessful defendants in O.S.No.28/87 on the file of II Additional Subordinate Judge, Kakinada. The respondent herein, the plaintiff in the suit filed the suit for specific performance of the agreemenalternative relief of refund of an amount of Rs.2500/- and for costs. The learned Judge on the strength of the respective pleadings of the parties having settled the Issues, recorded the evidence of PW-1 and PW-2, DW-1 to DW-3, marked Exs.A-1 to A-7 and Exs.B-1 to B-9 and recorded findings that the condition relating to the approval of plan or the approval of layout had not been complied with by the appellants/defendants and hence there was some delay and the respondent/plaintiff was ready and willing to perform her part of the contract and further findings had been recorded relating to the condition of cancellation of agreement and the capacity of the respondent/plaintiff to purchase the property and a further finding had been recorded that the recital relating to delivery of possession is neither an addition nor interpolation and the alienation is for legal necessity and hence the minors also are bound by the same and a further finding had been recorded in relation to the rights of defendants 4 to 6 that either on the ground of ratification or on the ground of implied agency in the light of the conduct of the parties and the evidence available on record they are also bound by the agreement of sale Ex.A-1 and accordingly decreed the suit with costs. Hence the present Appeal.

(2.) Submissions of Sri V.L.N.G.K.Murthy : Sri V.L.N.G.K. Murthy, the learned Counsel representing the appellants made the following submissions. The learned Counsel would maintain that the concept of agency and the implied agency or the ratification are conflicting stands since they do not co-exist. Even otherwise there is no specific plea in this regard except one sentence in the pleading and hence this may not be sufficient to infer implied agency and this cannot be taken as a foundation for ratification. The learned Counsel also pointed out to para-9(a) which had been introduced by amending the pleading and had taken this Court through the respective pleadings of the parties, Issues settled and also the findings recorded, the notices between the parties and the contents thereof. The learned Counsel also made elaborate submissions in relation to implied agency and ratification while drawing the attention of this Court to the relevant provisions of the Indian Contract Act 1872. The learned Counsel also would maintain that at the time of the execution of the agreement the same was proceeded on the ground that the executants alone are the owners of the property and hence there cannot be a change of stand now so as to fasten the obligation even on the non-parties to the agreement of sale. The learned Counsel with all emphasis would contend that in the light of the facts and circumstances the non- parties to Ex.A-1 cannot be made liable under Ex.A-1 either on the ground of implied agency or on the ground of ratification and these findings are totally unsustainable. The learned Counsel also pointed out that the minors had attained majority and the question of karta representing may not arise. The learned Counsel also would contend that the 8th defendant may be competent to alienate representing defendants 14 and 15 also. Likewise, the 1st defendant as Karta may enter into such transactions on behalf of the minors in the event of the transaction being supported by legal necessity. Even otherwise, 18th defendant is a non-party to Ex.A-1. The learned Counsel also explained the minors had attained majority and had chosen to contest the litigation. The learned Counsel also made certain submissions on the aspect of succession of the respective shares under the provisions of the Hindu Succession Act 1956 as amended subsequent thereto. The learned Counsel also pointed out that the 24th defendant was not a party to Ex.A-1 and she was impleaded in I.A.No.469 of 1992. The mere recital relating to the debts may not carry any weight and there is absence of legal necessity in the present case and hence the minors would not be bound by Ex.A-1. The 24th defendant was impleaded in the year 1992 after the period of limitation and there is no specific order saving limitation in this regard and hence the suit is barred by limitation as against the 24th defendant. On the aspect of interpolation relating to the recitals of delivery of possession the learned Counsel had taken this Court through the evidence of PW-2 and also the evidence of PW-1 in this regard and also would contend that in the light of the fact that the advance paid is only of a small proportion it is highly improbable that delivery of possession would have been recited or would have been given as shown in Ex.A-1. The Counsel also would maintain that the relief of specific performance being discretionary relief inasmuch as the respondent/plaintiff approached the Court with unclean hands the relief may have to be negatived. The learned Counsel also explained the contents of Ex.B-2 and would contend that this would show that the respondent/plaintiff was not ready and willing to perform her part of the contract but trying to get some time by introducing certain new conditions like encroachments. Submissions at length were made relating to the aspect of encroachments in the light of the evidence available on record. The learned Counsel also made certain submissions in relation to dereservation and the findings recorded by the trial Court in this regard. The Counsel also would point out that the ground of laches and the finding recorded in relation thereto by the trial Court as on the part of the defendants in a suit for specific performance cannot be sustained. The alleged clarification for the layout plan in Ex.B-2 in fact is a new condition under the guise of clarification and hence it may have to be taken that the respondent/plaintiff was not ready and willing to perform her part of the contract. The learned Counsel also would maintain that the mere fact that the litigation was conducted by one of the parties would not alter the situation as far as the binding nature of Ex.A-1 is concerned. The learned Counsel also placed reliance on certain decisions.

(3.) Submissions made by Sri M.V. Durga Prasad : Sri M.V. Durga Prasad, the learned Counsel representing the respondent/plaintiff had explained in detail the conduct of the parties and the way in which the litigation was conducted and the way in which the appellants/defendants intend to take advantage of dereservation which had been obtained by PW-1 with great difficulty. The learned Counsel also would maintain that if the facts are carefully analysed in the circumstances since the appellants/defendants were not hopeful of retaining the property at all and it was lying waste and useless they are entitled to Ex.A-1 and because of the subsequent appreciation of the property in view of the dereservation the appellants/defendants are contesting the litigation on several technical grounds. The learned Counsel also would explain that in relation to the other share a suit was filed and the same was settled also. Though separate written statements were not filed the very fact that the cross-examination was done by one Advocate would go to show that all these parties are sailing together and hence on the ground of ratification the plaintiff is bound to succeed and the findings recorded by the trial Court are well justified in this regard. The Counsel also pointed out to relevant provisions of the evidence of DW-1, DW-2 and DW-3 as well and had explained the relevant provisions of the Indian Contract Act 1872 in this regard. The learned Counsel with all emphasis would maintain that having taken the services of PW-1 to the maximum extent for the purpose of dereservation and having taken advantage of the same the appellants/defendants cannot turn round and take such pleas which would be definitely impermissible even on the ground of equity. The learned Counsel also would further maintain that on the question of want of legal necessity no evidence on behalf of the minors had been adduced and there is no separate cross-examination even and hence the minors are bound by Ex.A-1. The learned Counsel also explained in this context the scope and ambit of Section 8 of Hindu Minority and Guardianship Act 1956. The Counsel after making elaborate submissions on the notification and denotification and also the legal necessity further explained on the aspect of interpolation and would contend that in the light of the clear evidence of PW-1 and PW-2 and also in the context of such recital being present in yet another agreement also the stand taken by the appellants/defendants cannot be believed. The learned Counsel also explained the reciprocal promises and the duty to speak and how to decide the breach of a condition in relation thereto. The learned Counsel also would submit that on the aspect of failure to purchase except an attempt being made no convincing evidence had been adduced in this regard. The learned Counsel also would submit that the amount in fact had been deposited and the same was withdrawn pending Appeal and the same had been kept in fixed deposit and the respondent/plaintiff has no objection if the suit amount with the accrued interest also is paid to the appellants/defendants. The learned Counsel also explained the meaning of acquiescence and made elaborate submissions on the aspect of ratification and would ultimately conclude that in the light of the findings in detail recorded by the trial Court the said findings need not be disturbed. The learned Counsel also placed strong reliance on several decisions in this regard.