TIRUMALA CHHTTI RANGAYYA Vs. KANDALLA SRINIVASA RAGHAVA-CHARLU

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of an agreement to sell. The agreement was executed by the 1 defendant for himself and as guardian of his younger brother, the 2nd defendant. The 3 defendant was the divided brother of the plaintiff and the two brothers were on bad terms for sometime. He obtained a sale deed from defendants Nos. 1 and 2 on the 6 January, 1921, (Ex. VII). The plaintiff alleges that this sale-deed was obtained with the knowledge of plaintiff's agreement, which is Ex. A dated the 25 December, 1920. Defendants Nos. 4 and 5 are the undivided sons of the 3 defendant. The 3rd defendant died during the tendency of the case in the Court below. The Subordinate Judge of Chittoor dismissed the plaintiff's suit for specific performance, but gave him a decree for refund of the advance of Rs. 2,500 which was received by the 1 defendant at the time of the plaintiff's agreement, with interest. The plaintiff appeals.

(2.) The 3 defendant pleaded, in his turn, that his sale-deed, Ex. Vll, was obtained in pursuance of an agreement executed by the 1 defendant in his favour, namely, Ex. II dated 27 June, 1918, and that, as the plaintiff obtained his agreement, Ex. A, with the knowledge of the 3 defendant's agreement, he is not entitled to specific performance. Six days prior to Ex. 11, the 1 defendant executed a deed of mortgage in favour of the 3 defendant for Rs. 14,000 (Ex. VI dated the 21 June, 1918). The language of Ex. II shows, and the Court has also found, that Exs. II and VI are connected and form part of one transaction. The Subordinate Judge says "Ex. II was executed between the date of the execution of Ex. VI and the date of its registration. Io was clearly the consideration for the low rate of interest provided in Ex. VI and the low rate of interest in Ex. VI was the consideration for it." The appeal was argued before us by the learned Advocate for the appellant and the learned Advocate-General for the respondents on the footing: that the two documents form part of the same transaction. I shall later on refer to the argument of the respondents based on the fact that they were executed on different dates. In pursuance of Ex. II, Ex, VII was obtained by the 3 defendant. The Subordinate Judge also finds that Ex, A was obtained by the plaintiff with the knowledge of Ex. II and this finding has not been challenged in appeal.

(3.) When the appeal originally came on for hearing before us, an objection was taken by the learned Advocate for the respondents that Ex. A was inadmissible in evidence on account of the recent decision of the Privy Council in Dayal Singh V/s. Indar Singh 98 Ind. Cas. 508 : 53 I.A. 214 : A.I.B. 1926 P.C. 84 : 24 A.L.J. 807; (1926) M.W.N. 602 : 3 C.W.N. 634 : 24 L.W. 396 : 44 C.L.J. 97 : 7 P.L. T 661 : 28 Bom. L.R. 1372 : 51 M.L.J. 788 : 31 C.W.N. 125 : 28 P.L.E. 10 (P.C.). The appellant attempted to meet this objection by arguing, first, that the point cannot be raised in appeal and secondly, that there was part performance of the contract by delivery of possession and, therefore, specific performance can be decreed. We, therefore, called for a finding on the question whether the plaintiff was put in possession of the suit lands by the 1 defendant or under his direction and, if so, when? A finding has been returned.[See Infra p. 760--Ed.] In the interval, the Indian Legislature has amended the Indian Registration Act by providing that an unregistered agreement for sale even reciting payment of consideration is not inadmissible in evidence and making this provision declaratory of the law and retrospective in its operation. The result of this amendment of the Registration Act is that the objection as to the admissibility of Ex. A ceased to be of any importance. This was conceded by both sides and the appeal was argued on the footing that Ex. A is admissible.