GADE ROSI REDDI Vs. GADE KRISTNA REDDI

JUDGEMENT

(1.) These two second appeals arise out of a suit for specific performance. One Venkata Reddi and his sons, defendants 2 and 3, executed a promissory note on 9 October 1933 in favour of the plaintiff and his paternal uncle, defendant 1, in renewal of an earlier note of 1930 executed by Venkata Reddi and defendant 2. The plaintiff and defendant 1 brought a suit on the note in 1936 for recovery of the amount due, but pending the suit the parties entered into a compromise as a result of which the suit was allowed to be dismissed. The terms of the compromise were embodied in three documents, Exs. A, B and G all executed on the same day, namely, 15 October 1936. Exhibit G is a promissory note executed by defendants 2 and 3 (their father having died by that time) in favour of the plaintiff and defendant 1 for Rs. 2004 being the amount of principal and interest settled as payable under the promissory note dated 9 October 1933. The said sum was to carry interest at the rate of one rupee per cent. per mensem till the date of payment. Exhibit A is a contract of sale whereby defendant 2 and defendant 3 as the guardian of his minor wife defendant 4 agreed to sell two acres and 50 cents of land to the plaintiff and defendant 1 for the sum of Rs. 2004 due to them under Ex. G. The document recites that possession of the properties was delivered forthwith and provides that a sale deed should be executed and registered within a month from that date, and that, in case of default, the promisees should be at liberty to recover the amount due to them under Ex. G. It may be mentioned here that after defendants 2 and 3 became divided, defendant 3 had conveyed, in 1935, five acres 20 cents of land to defendant 4, a portion of which was included in Ex. A. Exhibit B, the other document, was an indemnity letter given by defendant 3 to the plaintiff and defendant 1, undertaking to indemnify them in case his wife should raise disputes regarding the sale of her land after attaining majority, and to execute a security bond charging the indemnity on certain immovable properties belonging to him. In all these transactions, the plaintiff who was a minor was represented by his mother as his guardian. As defendants 2 and 3 did not execute a sale deed as provided in the contract of sale this suit for specific performance has been brought by the plaintiff after attaining majority.

(2.) Two other suits were tried with this suit and, though they are not before this Court now, it is necessary to make a brief reference to them. One of them was brought by defendant 4 after attaining majority against the proposed vendees, the plaintiff and defendant 1 herein, for a declaration that the contract to sell evidenced by Ex. A was not binding on her and for recovery of possession of her properties included in the contract from the vendees to whom they had been delivered in pursuance of the contract. This suit was decreed by the Courts below and a second appeal to this Court was dismissed. The other suit was filed by defendant l for specific performance of this very contract but only in so far as it related to his half share of the properties agreed to be sold which the plaintiff and defendant 1 had divided between themselves. The suit thus framed was held not maintainable, and defendant l in consequence joined the plaintiff in preferring the appeal to the lower appellate Court, although he was not willing to join in the first instance as a co-plaintiff and hence was impleaded as a defendant.

(3.) The trial Court held that the contract was indivisible and as no specific performance could be granted in respect of defendant 4's properties included in the contract no decree could be passed even in respect of defendant 2's properties. It accordingly dismissed the suit. On appeal by the plaintiff and defendant 1 the lower appellate Court took the view that the contract, so far as it related to defendant 2's properties, was severable and valid, and passed a decree for specific performance against defendant 2 alone confirming the dismissal of the suit against defendant 4. From this decision the plaintiff and defendant 1 have brought S. A. No. 60 of 1943 claiming relief against defendant 4 also, and defendant 2 has preferred S. A. No. 212 of 1943 challenging the correctness of the decree in so far as it granted specific performance in respect of his properties included in the contract.