KATRAGADDA SUBBAYYAMMA Vs. SAJJA CHIMPIRAYYA

JUDGEMENT

(1.) The appellants are the legal representatives of the plaintiff, the plaintiff having obtained a decree for specific performance of an agreement to sell, died during the pendency of the appeal preferred by the 3rd defendant. -

(2.) The suit was filed for specific performance of an. agreement, Exhibit A-1, dated 27th June, 1969. The suit contract, Exhibit A-1, was executed by the 1st defendant, who is the manager of the family. The 2nd defendant is the son of the 1st defendant. Under Exhibit A-1, the 1st defendant agreed to sell the plaint schedule land of an extent of 33 cents for a sum of Rs. 2,000. Under the terms of the said contract, a sum of Rs. 300 was paid by the plaintiff on. the date of the agreement towards advance and the balance of the sale consideration was to be paid by 27th September, 1969. The contract contained a stipulation, that in. case the plaintiff was to commit default, he should forfeit the advance of Rs. 300 and give back possession, of the land to the defendant. If, on. the other hand, the 1st defendant committed default, he was not only to repay the sum of Rs. 300 received as advance, but also pay a penalty of Rs. 300. As the plaintiff was put in. possession of the property pursuant to the contract, the defendant vendor would be entitled to take possession of the property from the plaintiff. During the currency of the agreement, on. 23rd August, 1969, ore Tummalapenta Anjaneyulu of Chirala, claiming to be a creditor of defendants 1 and 2. issued a registered notice to the plaintiff alleging that a sum of Rs. 600 was due to him on. a promissory note dated 31st March, 1969 executed by the 1st defendant and that the plaintiff should not obtain, any transfer of the property without discharging his debt. The plaintiff also learnt on enquiry that defendants 1 and 2 were indebted to another Modadugu Anjaneyulu on the foot of a mortgage and that a decretal debt obtained by one Ghundi Panduranga Rao, was also liable to be discharged. Besides there debts, one Perhi Sreeramulu filed a suit, S.G. No. 566 of 1969 on the file of the Sub-Court, Bapatla, against defendants 1 and 2 and got attached the unpaid purchase-money in the hands of the plaintiff. The plaintiff issued a registered notice dated 12th September, 1969 to the 1st defendant stating that he was ready with the money, and demanded that the 1st defendant should perform the contract by getting the lard measured and remove all the obstacles in. the way of execution, of sale deed as per the suit contract by discharging the mortgage and other debts. The defendant also issued a registered notice on 17th September, 1969 to the plaintiff independently, but not in answer to the registered notice deted 12th September, 1969 issued by the plaintiff. In his notice, it we stated that the defendant was ready and willing to perform his part of the contract and that the plaintiff was evading to obtain a sale deed presumably became he did not have money with him. In this notice, it was also stated by the defendant that time was of the essence of the contract and that if the plaintiff were to commit default in not obtaining the pale deed before the due dated viz., 27th September, 1969 the contract should be deemed to be cancelled. After the defendant received the plaintiff's notice dated 12th September, 1969 he sent a reply dated 23rd September, 1969 in which he had denied that he was under any obligation to get the land measured and execute the -ale deed. It was also denied therein that these was any indebtedness of the 1st defendant. It would appear that this notice issued by the defendant was received by the plaintiff on 24th September, 1969. The plaintiff obviously felt that the defendant was not going to perform the contract and had filed the suit for specific performance on 27th September, 1969. The parties belong to the same village of Daggubadu. Presumably, the defendants having come to know of the filing of the suit by the plaintiff for specific performance had sold the suit property to the 3rd defendant on 15th October, 1969 under Exhibit B-1. On 6th November, 1969 two different Advocates offered to appear for the 1st and 2nd defendants ar.d. the suit was adjourned for their written statements to 17th November, 1969. The Court extended the time for the filing of written statements. On 26th November, 1969 written statements of defendants 1 and 2 were filed. Thereafter issues were framed on 27th November, 1969. Subsequently, the plaintiff filed I.A. No. 2462 of 1969 dated 17th January, 1970 to implead the 3rd defendant who purchased the suit property pendente lite. The petition was ordered on 27th January, 1970. Thereupon the plaint was permitted to be amended. The amended plaint stated that the sale in favour of the 3rd defendant was a sham and nominal transaction, and that the 3rd defendant was fully aware of the suit contract. The sale also was hit by Us pendens. The 3rd defendant was not a bona fide purchaser for value. The 3rd defendant's sale was inoperative as against the plaintiff.

(3.) In the 1st defendant's written, statement, it was inter alia stated that defendants 1 and 2 are not members of a joint Hindu family and that the 2nd defendant was not the undivided son of the 1st defendant. It was stated that time was of the essence of the contract and that he was always ready and willing to perform his part of the contract. But the plaintiff had no money to pay the balance of the consideration and therefore the sale deed was not executed. The defendant never agreed to get the land measured. As the plaintiff did not pay the balance of the consideration, the defendant could not discharge the debts which was the very purpose for which the property was sold. The defendant had therefore treated the contract as cancelled and took possession, of the suit land in the presence of witnesses. " The plaintiff is not entitled to enforce the contract, as the same was cancelled by the defendant. The defendant sold the land to the 3rd defendant under a registered sale deed on 15th October, 1969 and delivered possession of the land to the 3rd defendant.