TADEPALLI KUTUMBA RAMA SASTRY Vs. SEETEPALLI DAKSHINA MURTHY

JUDGEMENT

(1.) THIS appeal is against the judgment and decree of the Court of the Principal Subordinate Judge, Vijayawada, dismissing the suit of the plaintiff for possession of the suit properties and also for future profits. 2. The plaintiff is the brother-in-law of the defendant who is his sisters husband. The defendant resided at Nagavarappadu Agrahararn in Gannavaram Taluk of Krishna District where the plaintiff had the suit lands. The defendant has 10 acres of wet land to the north of the suit lands and as the defendant had no facility and convenience for flow of water except through, the suit lands, he requested the plaintiff to sell the same to him. On 16-5-1947, a contract (Exhibit A-1) was entered into between the plaintiff and the defendant whereby the suit lands wore agreed to be sold by the former to the latter for Rs. 9,263-4-0 and the plaintiff received a sum of Rs. 1,000.00 as advance at the time when Exhibit A-1 was executed. As per the terms of the contract, the entire amount of consideration had to be paid before 30-6-1947 and the defendant should obtain the deed of sale on the understanding that both the parties should bear the stamp expenses equally. The defendant made further payments of Rs. 4,000.00on 27-4-1950 and on 21-6-1950 a sum of Rs. 1,000.00. Within one week of the agreement to sell, the defendant took possession of the lands and has been enjoying the same from that time. The plaintiff has since then been demanding payment of the balance of consideration and also urging upon the defendant to take the sale deed. On 24-6-1950 the defendant gave a hand letter (Exhibit A-2) to the plaintiff wherein it has been stated that on taking an account, the sum due under the sale agreement as on that day was Rs. 5,424-3-0 and the defendant should pay this amount with interest accruing thereon at Re. 0-12-0 per cent per mensem whenever demanded by the plaintiff "without reference to the limitation of the sale contract and obtain a sale deed" from the plaintiff "with proper terms as per the terms of the contract" which mentioned that the sale deed shall be executed with the proper terms (Kramamyna Sharathulu). Thereafter the defendant has been writing several letters to the plaintiff expressing difficulties in making good the amount, hut defaulted to pay the balance of consideration and take the sale deed. The plaintiff thereupon caused a registered notice (Exhibit B-5) dated 26-5-1952 to he issued by his advocate to the defendant. After complaining about the vexatious delay, the plaintiff made it clear through that notice that the defendant should he given as a last chance a weeks time for payment of the balance of Consideration and for petting the sale deed and made the defendant aware that in default a suit will be filed for recovery of possession of the land and of profits. The defendant in his reply thereto averred that the suit lands were the paternal property of the plaintiff and as the plaintiff has minor sons and has also alleged that the plaintiff, prior to the contract of sale, referred about the necessity of selling the said lands, he believed the misrepresentations made by the plaintiff in regard to the supposed debts and that subsequently the plaintiff agreed that he would if necessary get a third party to be his surety or personally furnish some other immoveahle property sufficient to the contract as security. The plaintiff caused Exhibit B-6 dated 9-6-1952 to be issued denying these allegations as false. The plaintiff in this commnnication stated definitely that as the defendant did not avail the further time granted to him, he was cancelling the contract. But the defendant insisted in Exhibit A-26 on the plaintiff furnishing proper security before receiving the sale consideration. The suit had thereupon been filed for the aforesaid reliefs. 3. The defendant inter alia contended that he offered the plaintiff the balance of the unpaid purchase money due under the contract and requerted the plaintiff to execute a sale deed with proper recitals and to furnish him with the vouchers of the discharged family debts of the plaintiff, and that it was then that the plaintiff disclosed that there were really no debts due to the family and that the plaintiff was only going to purchase immovaable properties at Ventrapragada of an equal extent of land with the moneys from the realisation of the sale and also represented that the plaintiff would either furnish the said lands as security or, in the alternative, would offer sufficient security of immoveable properties of his own. The defendant further averred that in spite of repeated demands the plaintiff failed to comply with these terms. According to the defendant, these variations in the terms of the contract are enforceable against the plaintiff and that, therefore the cancellation of the contract by the plaintiff lacks bona fides. The defendant set up the case that the plaintiff fraudulently suppressed the facts that there were no prior debts, but made misrepresentations relating to the existence of debts. According to him, the security of immoveable property insisted upon by him is to avoid future litigation at the instance of the plaintiffs minor sons, and this condition is a "natural and a legal variation contemplated by the parties" and that therefore the plaintiffs suit is unjust and untenable. He claimed that security could be insisted upon by him as he is entitled to have a, title free from doubt. He also denied that the plaintiff is entitled to mesne profits. The defendant also set up the case that he made improvements to the suit lands and that he is entitled to get the amount so spent for the improvement from the plaintiff. 4. The learned Subordinate Judge found, after framing the necessary issues, that the plaintiff is not entitled to succeed in the suit as he could not cancel the suit contract, and that the defendant had not failed to perform his part of the contract and did not therefore commit breach of the same. The learned Judge held that no evidence has been let in, in regard to the improvements to the suit lands and that the question relating to mesne profits did not arise in view of his findings. 5. At the outset, it may be observed that no witnesses have been examined on cither side, that the trial of the suit was only with reference to the documents exhibited which consist of an agreement for sale (Exhibit A-1) and the subsequent letter of the defendant (Exhibit A-2) which specified the balance left over to be paid with interest and certain other letters written by the defendant, time and again promising to complete the affair (Vyavaharam) which obviously related to the payment of the balance of consideration and taking of the deed of sale and the registered notices which passed between the parties, as also the Bank balances in the Savings Bank Account as pointing to the readiness and willingness of the defendant to perform his part of the contract. 6. It is necessary to mention that while the appeal was pending in this Court, the defendant was adjudicated an insolvent and the Official Receiver had been brought on record on 4-11-1957. But the Official Receiver did not choose to oppose the appeal or contest the claims of the plaintiff in this appeal. Mr. Sankara Sastry who originally appeared for the respondent (defendant) had therefore helped this Court as Amicus Curiae having been permitted to do so and nave valuable assistance. 7. On behalf of the appellant, Mr. G. Venkatrama Sastry contended that as the parties are closely related to each other, there it no likelihood of any of the particulars in regard to the affairs of the plaintiff or relating to negotiations for purchase being kept away or unknown to the defendant. The plaintiff no doubt belonged to Ventrapragada in Gudivada Taluk. He had been educated, holding degrees, but had been employed and has been keeping out of the village. The lands are situate in the defendants village and being near the lands of the defendant and useful for taking the channel to irrigate the lands of the defendant, should have been considered as best suited for being owned by the defendant rather than by the plaintiff. There is no evidence on record to show that the plaintiff was ever indebted to anybody; nor could it be said that he approached the defendant for any accommodation to repay any debts of his. On the other hand, the tenor of the transactions clearly establishes that the defendant wanted to gain advantage for himself and possess the properties with a view to profit himself. It is not also in evidence when the three minor children of the plaintiff, for the first time mentioned in Exhibit A-24, were born. Obviously all the three minors could not have been in existence in May 1947 when, the suit contract was entered into. The defendant did not even examine himself. According to the defendant, the misrepresentation in regard to the debts was before the contract of sale and it must be remarked that the defendant has utterly failed to make this out as there is not even an iota of evidence in regard to this on record. Tho further averment of the defendant that when vouchers for discharged debts were demanded, the plaintiff made other promises to secure a, third party surety or to personally furnish some other immovable property as security finds expression for the first time only in Exhibit A-24; but there is no whisper in regard to this in any of the letters which the defendant has written to the plaintiff. The letters written cover the period from March 194 9/01/1952. They are Exhibits A-2 to A-22, The defendant merely refers to the worry caused to the plaintiff by the delay occasioned and the defendant promises, time and again, to complete the business, thereby meaning the transaction relating to the contract of sale. In Exhibit A-4 he frankly confessed that his position was not stable, Ho assures the plaintiff in Exhibit A-5 that he will not cause loss to him, and fixes the end of September 1949 in Exhibit A-6 for finishing the work; but he later on puts it off in Exhibit A-8 on the ground that his son Vonkateswara Sarma is expected for the holidays on tho 10th or 11th of October. Again he writes that the work of the plaintiff will he completed before Deepavali in the same year. To the same purpose is Exhibit A-10 also; and in Exhibit A-11 he is definite that the work of the plaintiff would be completed before his going to Bangalore. Exhibit A-13 dated 19-11-1949 is yet another letter. The defendant states therein that his son Venkateswara Sarma left for Bombay on the 14th instant, that he himself is attending to the work of the plaintiff only, but that it is not complete, that the work will be finished within the end of that month and that it is the final promise but that days are not favourable to him and that he has "no other evil intention." He further states that he will see that nothing untoward happeas in the plaintiffs affair. Then on 24-11-1949 (Exhibit A-14) he makes the plaintiff aware that the latters sister also is concerned in the affair, that she is encouraging him to finish the affair, while on 1-5-1950 in Exhibit A-16 he definitely promises to pay the money to the plaintiff and obtain tho endorsement of payment when the plaintiff goes to him on a promised visit; but that too has not obviously happened as in Exhibit B-1 written by the plaintiff to the defendant on 12-5-1950, the plaintiff says that as the due date is approaching the defendant ought not to neglect but pay the remaining amount and obtain the endorsement of payment. It is only because of the pressure thus brought by the plaintiff on the defendant that later on the letter (Exhibit A-2) dated 24-6-1950 was executed by the defendant wherein he mentioned the figure of Rs. 5,424-3-0 as the balance due on that date under the contract which he undertook to pay with interest. It is there again stated that the defendant would obtain a sale deed from the plaintiff "with proper terms as per the terms of the contract". Further on 5-7-1950 in Exhibit A-17 the defendant again specifically states that the plaintiff need not be afraid and that the burden is upon him to complete the work early, and reiterates the same promise both in Exhibit A-18 dated 18-9-1950 and Exhibit A-19 dated 9-7-1951. It is significant what in the letter Exhibit A-30 written on 24-10-1951 the defendant states: