AMAN MALLIKARJUNA RAO Vs. CHUKKAPALLI VEERA RAGHAVAYYI

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree dated 21-1-1985, in O.S.No.199/79 on the file of the Subordinate Judge, Narasaraopet insofar as it is against him.

(2.) The facts in brief, are as follows : (i) The 1st defendant is the father of the 2nd defendant and husband of 3rd defendant and they constituted Hindu Joint Family. The Defendants 4 and 5 are the younger brothers of the plaintiff-appellant. The plaint 'B' schedule property belongs to the family of the Defendants 1 to3. Dl hadapre-deceased son by name Veera Shankara Rao, The plaint 'A' schedule landed properly comprising three S.Nos. i.e., S.No.3/1 extent Acs.6.91 cents, S.No-48/1 extent Acs.3.51 cents and S.No.48/2 extent 1 acre (total extents Acs. 11.51 cents), is shown as forming part of plaint 'B' schedule property belonging to the family ofDefcndants 1 to 3 and late Veera Shankara Rao, the pre-deceased son of Dl. On 7-6-1978, the 1 st defendant executed an agreement of sale in favour of the plaintiff with respect to the plaint 'A' schedule property agreeing to sell the same at the rate of Rs.6,000.00 per acre and also received a sum of Rs. 10,000.00 as earnest money. Ex.A1 is the said original agreement of sale, dated 10-6-1978 executed by Dl. It is agreed under this document that the balance of the sale consideration to be paid within 45 days and obtain a registered sale deed. As the 1st defendant failed to execute the registered sale deed, as per the terms of the contract, the plaintiff got issued a registered notice, dated 20-7-1978 to the 1st defendant through his advocate. Ex.A2 is the office copy of the said notice. The 1st defendant issued a reply (Ex.A4), dated 19-8-1978 to that notice of the plaintiff stating that he will not execute the registered sale deed, as his son the 2nd defendant did not agree for the said sale and that he is ready to refund the earnest amount. The 1st defendant also enclosed the draft for Rs.10,000.00 obtained in the name of the plaintiff by way of refund of the earnest amount. On 5-8-1978 on coming to know about the agreement of sale Ex.A1 executed by D1 in favour of the plaintiff, the 2nd defendant got issued a notice, Ex.A5, to the plaintiff and D1 stating that there was no legal necessity for D1 to sell the property which is joint family property and that it is not binding with respect to his share. Under Ex.A6, dated 15-8-1978, the plaintiff got issued a reply to the 2nd defendant contending that the property agreed to be sold under Ex,A1 is the self-acquired property of Defendant No.l and as such, Dl has got full power to dispose of the property and that even if it is assumed to be the joint family property, it is binding on the 2nd defendant as it was sold by D1 as manager of the joint family. Thereafter, the plaintiff filed the suit on 24-10-1979 for specific performance of the agreement of sale Ex.A 1, originally, against Dl and D2. The plaintiff also prayed that if for any reason this primary relief of specific performance by both the defendants could not be granted directly there should be a general partition of the family property of the defendants and in such partition, plaint 'A' schedule property may be allotted to Dl directing him to execute a regular sale deed in favour of plaintiff working out the equities in the partition between Dl and D2. Subsequently, as per orders in I.A.No.1402/81, dated 14-1-81, the 3rd defendant was added as a party as she happened to be the mother of Veera Shankara Rao. Subsequently, as per order in I.A.No.3078/84, dated 27-4-84, the Defendants 4 and 5 who were the younger brothers of the plaintiff were impleaded as parties. (ii) All the defendants resisted the claim of the plaintiff and filed separate written statements. The 1st defendant admits the suit agreement of sale Ex.Al and also receipt of the amount of Rs.10,000.00as earnest money, but he pleads that he executed the agreement of sale feeling confident that his son the 2nd defendant would agree for the said sale and execute the registered sale deed. He also pleaded that the agreement of sale has become impossible for performance on account of the refusal by the 2nd defendant. Dl further pleaded that the suit for partition of 'B' schedule property and allotment of 'A' schedule property to Dl is not maintainable. The 2nd defendant pleaded in his written statement that the plaint 'A' schedule properties are not the self-acquired properties of the Defendant No. 1, that there was no necessity for the 1st defendant to sell the plaint 'A' schedule property as Kartha of the family; that the agreement of sale does not bind the 2nd defendant, and the plaint 'B' schedule property is the co-parcenary property of D1 and D2 and that plaintiff is not entitled for partition of plaint 'B' schedule property. The agreement of sale does not create any title in the property, but only enables to sue for specific performance and that the plaintiff is entitled only to the interest of his vendor in the property agreed to be sold. The 3rd defendant filed her written statement contending that the joint family of the defendants consisted of Dl to D3 and late Veera Shankara Rao, who was the 2nd son of D1 and D3 and subsequent to the death of Veera Shankara Rao, D3 is entitled to l/3rd share of Veera Shankara Rao in the family properties and that D3 is not aware of the agreement of sale. The plaintiff has not acquired any right or title in the plaint 'A' schedule property and as such, plaintiff has no right for partition of the family properties, and the equities cannot be worked out- It is alleged in the written statement filed on behalf of the 4th defendant which was adopted by 5th defendant that plaintiff and D1 to D5 are entitled to equal shares in the property under the agreement of sale, dated, 7-6-1978 and the agreement of sale was taken nominally in the name of the plaintiff and the amount paid under the suit agreement belongs to the plaintiff, D4 and D5 and as such, the suit properties have to be partitioned among the plaintiff, D4 and D5.

(3.) On a consideration of the said pleadings, the following issues were settled for trial : 1. Whether the suit agreement dated 7-6-1978 is binding on the second defendant and third defendant ? 2. Whether the agreement of sale became incapable of specific performance on grounds stated by the first defendant ? 3. Whether the plaintiff is entitled to ask for partition of 'B' schedule properties and for allotment of 'A' schedule properties to the first defendant ? 4. Whether the first defendants wife is a necessary party to the suit and if so whether the suit is bad for non-joinder of necessary parties ? 5. To what relief? Additional issue framed on 26-10-1984 : 1. Whether the suit agreement of sale was taken nominally in the name of the plaintiff? Subsequently, another additional issue was framed : "Whether the plaint 'A' schedule property is the self-acquired and separate property of the first defendant ?