BUDDA ADEYYAMMA Vs. KANDREGULA SIMHACHALAM

JUDGEMENT

(1.) THE sole plaintiff is the appellant. The suit for specific performance of an agreement of sale, dated 06. 11. 1979 (Ex. A. 1), was dismissed by the trial Court and the said decree is under challenge in this appeal.

(2.) THE facts, in brief, are as follows: The first defendant is the father and defendants 2 to 4 are his undivided sons. Fifth defendant is the son of second defendant and sixth defendant is the son of third defendant. First defendant is the absolute owner of a terraced house (suit schedule property ). It is alleged that the suit schedule property is the self-acquired property of the first defendant. It is further alleged that defendants 1 to 3 representing themselves and defendants 4 to 6, who were minors then entered into Ex. A. 1-agreement of sale with seventh defendant for a price of Rs. 40,000.00 and have received an advance of Rs. 5,000.00 on the date of agreement. As per the terms of the agreement it is alleged that the seventh defendant agreed to pay the balance consideration and obtain registration in her favour or her nominee or transferee, within three months from the date of agreement of sale. It was also agreed that expenses of registration and stamp will be borne by the seventh defendant/purchaser and defendants 1 to 6/sellers in equal shares. The plaintiff further alleges that she sent a notice on 03. 02. 1980 (Ex. A. 2) to defendants 1 to 6 calling upon them to execute the sale deed, but they failed to give any reply. Thereafter, it appears that the seventh defendant has transferred the entire agreement in favour of the plaintiff by making an endorsement on the suit agreement (endorsement was marked as Ex. A. 6, dated 11. 08. 1982) and the said fact was informed to defendants 1 to 6 by the plaintiff as well as by the seventh defendant under Exs. A. 7 and A. 8, each dated 12. 08. 1982. The postal receipts and acknowledgments of each of the addressee were marked as Exs. A. 9 to A. 16. Ex. A. 7, dated 12. 08. 1982 is relevant inasmuch as it is a notice issued by the plaintiff calling upon defendants 1 to 6 to specifically perform the contract and confirming that the plaintiff will discharge all the obligations undertaken by the seventh defendant including sharing of the registration and stamp expenses in equal share. The present suit thereafter came to be filed seeking specific performance as there was no reply to the said notice. The seventh defendant was also impleaded as proforma defendant in the suit. Though the plaintiff claimed relief for specific performance primarily against defendants 1 to 6, she had also claimed alternative for the refund of advance and damages in the event of she being found not entitled to specific relief for any reason.

(3.) BASED on the above pleadings, the trial Court framed the following issues :