JAWAHARLAL DAIMA AND CO Vs. CHINTA CHITTEMMA

JUDGEMENT

(1.) The unsuccessful plaintiff pre. ferred this appeal against the judgment and decree of the learned subordinate Judge, Vijayawada in O.S. 353/77 dt. 16-2-1981 dismissing the suit of the plaintiff for specific performance based on an oral agreement of sale dt. 1-11-77 in respect of H No 11-49-311 in Sivalayam Street, Vijayawada. Respondents 1 and 2 in this appeal are defendants 1 and 2 in the suit. The parties in this appeal are referred to in their original character as in the court below. The plaintiff is a firm represented by its partner Mohanlal Joshi. The first defendant is the owner; she is a resident of Eluru town and the plaintiff is the lessee of the ground floor portion on a monthly rental of Rs. 140/-. The case pleaded by the plaintiff in brief is as follow; The first defendant being a house wife without "much education", either her husband Somaraju or her son Satyanarayana (D.W.2) used to collect rents from the tenants whenever came to Vijayawada and pass receipts. "They were always acting on her behalf as her duly authorised representatives in the management of her property". On 1-11-71, Satyanarayana, the son of the first defendant accompanied by Kodeti Krishna Murthy, Carpenter Maistry (P.W.3) came to Vijayawada, met Mohanlal Joshi, the partner of the plaintiff firm and negotiated on behalf of the first defendant the terms for sale of the plaint schedule house The deal was struck for Rs. 95, 000/- and an oral agreements was concluded as per which the plaintiff-firm should pay an advance of Rs. 4, 000/- and the balance consideration of Rs. 91,000/- at the time of execution and registration of the sale deed within one month. Satyanarayana, D.W.2 received the advance and agreed to send a written agreement under the signature of his mother, the first dcfeu- daat. After going to Blum, Satyanarayana and Carpenter-Maistry Krishna Murthy appraised the first defendant about the terms and conditions of the agreement and obtained her approval and the same was communicated to the plaintiff by a letter Ex. A-1, dt 3-11-1977 in the hand writing of the first defendant's husband Somaraju. A new request was made in the letter Ex. A-1 for an additional advance of Rs. 40,000/- and the balance amount of Rs. 51, 000/- to be payable before the sub Registrar at the time of the registration. Somaraju, the husband of the first defendant expressed his desire in the letter Ex. A-1 to come to Vijayawada to receive the additional advance of Rs. 40, 000/- and "deliver the written agreement of sale to the plaintiff." In case it was not possible for him to go to Vijayawada, Somaraju desired that the plaintiff might send its representative to Eluru to receive the written agreement and pay the additional advance of Rs. 40, 000/-. Another letter Ex. A-3 dt. 10-11-77 was written by Somaraju admitting the agreement and informing the plaintiff that he and his wife were not in a position to go to Vijayawada in view of their failing health and so it was desirable that the plaintiff sent a representative to collect written agreement and pay the additional advance of Rs. 40, 000/-. Pursuant to this request Mohanlal Joshi (P.W. 1), partner of the plaintiff-firm went to the house of defendant in Eluru on 15-11-77 with the advance money of Rs. 40, 000/- At that time the first defendant's husband was not in the house and therefore, the first defendant could not receive the money and deliver the written agreement as promised. But she informed Mohanlal that she would arrange to send the agreement through her husband and requested Mohanlal Joshi to keep the money ready and expressed her anxiety to complete the transaction within one month. Mohanlal Joshi, therefore, had to go back to Vijayawada' with the money without paying advance and obtaining the written agreement. It was alleged in the plaint that Jethtnal Bhabutmal, the husband of the second defendant having come to know of the agreement of sale in favour of the plaintiff, conceived the idea of purchasing the house by offering more amount. The plaintiff waited till the end of November, 1977 and as no communication was received from the first defendant, got issued a lawyer's notice Ex. A-5, dt. 2-12-77 calling upon the first defendant to inform the plaintiff telegraphically the date and the time when the first defendant and her husband proposed to go to Vijayawada, receive the money and go through the transaction as promised. A further notice Ex. A-7 was also got issued on 7-12-77 stating that the plaintiff came to know that the first defendant was trying to enter into a collusive transaction with Jethmal Bhabutmal, the husband of the second defendant with an intent to defeat the claims of the plaintiff under the suit agreement and requested her to desist from acting in such a clandestine manner. A third notice, by way of a telegram, Ex. A-8 dt. 8-12-77 was also got issued. The defendant sent a reply notice through her advocate, Ex. A-9, dt. 9-12-1977 informing the plaintiff that she had already agreed to sell the building to the second defendant and executed an agreement of sale On 27-11-77. Pleading that this was a collusive action and that the plaintiff has been ready to take the sale deed in terms agreed upon and alleging that the first defendant was guilty of breach of contract, the suit was laid for specific performance or the oral agreement of sale dated 1-11-77.

(2.) The first defendant, the owner of the suit-house in her written statement denied the allegation that she agreed to sell the house at any time to the plaintiff. She was not aware of the alleged negotiations made by her son Satyanarayana D.W 2 or her husband Somaraju regarding the terms of the sale of the building. She did not authorise them to enter into any negotiations or agreement regarding the sale of her property. She authorised to them was only to collect the rents but never to sell the property. She also denied the allegation that the carpenter Krishnaiah, P W 3 was authorised by her to negotiate or conclude the contract. Denying the alleged receipt of advance of Rs. 4,000/- she pleaded that she was not aware of the letters Exs. A 1 and A 3 "supossed to have been written by her husband". The further allegation that P W 1 met her husband on 15-11-77 at her house was also denied. She pleaded that she already agreed to sell the house to the second defendant on 27-11 -77 for a sum of Rs 95,000/- and executed an agreement of sale in her favour The sale of the house was with a view to discharging the pressing debts incurred. The contents of the reply notice Ex. A-9 dt. 9-12-77 got issued by her through her advocate, she pleaded, may be read as part and parcel of her written statement- The second defendant in her written statement while contending that the plaintiff was not entitled to any of the reliefs prayed for, stated that she purchased the building under a written and duly stamped contract of sale dated: 27-11-77 (Ex B 1) for a consideration of Rs. 95,000/- and paid a sum of Rs 20,000/- towards advance payment of the sale consideration. The telegraphic notice Ex. A- 8 said to have sent by the plaintiff was never received either by her or by her husband. She also denied the other plaint averments regarding the right of the plaintiff to enforce the specific performance of the alleged agreement of sale.

(3.) On these pleadings the learned trial judge framed as many as six issues. P W 1 Mohanlal Joshi is a partner of the plaintiff-firm. His son Jawaharlal Joshi, is another partner of the plaintiff-firm figured as P W 2. Krishna the carpenter Maistry who was alleged to have entered into the oral agreement of sale on 1-11-77 on behalf of the first defendant was examined as P W 3. One Sivagopal Lunani, a resident of Eluru deposed as P W 4 about the message received from P W 1 regarding payment of advance and the plaintiff's right to get the suit house registered. Jandhyala Adisatyanarayana Murthy. an employee of the plaintiff-firm deposed as P W 5 about the alleged oral agreement of sale and the payment of advance of Rs. 4,000/-. The first defendant gave evidence as D W 1. Her son Satyanarayana firgured as D W 2 Jethmal, the husband of the second defendant was examined as D W 3. The scribe of Ex. B.1 dt: 27-11-77, agreement of sale, executed by the first defendant in favour of the second defendant, was examined as D W5. The learned trial judge after considering the evidence on record both documentary and oral, held that there was only a negotiation for sale on 1-11-77, but not a concluded contract. The failure on the part of the first defendnant to examine her husband Somaraju as a witness was not a circumstance in favour of the plaintiff for granting the relief; no adverse inferancc could be drawn against the first defendant because of non-examination of her husband as a witness; it was for the plaintiff to secure the presence of Somaraju although he is the husband of the first defendant and might not support the plaintiff's case. There was neither express nor implied agency by which the first defendant authorised her husband and her son Satyanara- nana D W 2 and carpenter Krishna, P W 3 to enter into negotiations on her behalf or to conclude an agreement. There was no evidence from the side of the plaintiff to show that the suit transaction was entered into because Somaraju had held out to be an agent. The learned Judge disbelieved the accounts produced by the plaintiff regarding payment of advance amount of Rs . 4,000/- on 1-11-77 at the time of the alleged oral agreement of sale. The second defendant had no knowledge about the alleged oral agreement. The execution of Ex B-1 agreement of sale dt. 27-11-77 by the first defendant in favour of the second defendant was established by the evidence of D Ws 2, 3, 4 and 5. The registered notice Ex A-5 dt. 2-12-77 was issued by the plaintiff only to the first defendant but not to the second defendant. The telegraphic notice Ex A-8 dt. 8-12-77 was issued only to the second defendant; no certified copy of the telegram was produced to prove that it was issued to the second defendant also. Assuming that it was also served on the second defendant, it having been issued on 8-12-77 long after. Ex B-l dt. 27-11-77, there was no basis for holding that the second defendant had knowledge about the alleged oral agreement of sale dt. 1-11-77. For these reasons the learned Judge dismissed the suit with costs.