TIRUMALA CHETTY RANGAYYA CHETTY Vs. KANDALLA SRINIVASA RAGHAVACHARLU

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 some time. He obtained a sale-deed from defendants 1 and 2 on the 6 January, 1921 (Exhibit VII). The plaintiff alleges that this sale-deed was obtained with the knowledge of the plaintiff's agreement, which is Exhibit A, dated the 25th December, 1920. Defendants 4 and 5 are the undivided sons of the 3 defendant. The 3rd defendant died during the pendency 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 Exhibit VII, was obtained in pursuance of an agreement executed by the 1 defendant in his favour, namely, Exhibit II, dated the 27 June, 1918, and that, as the plaintiff obtained his agreement, Exhibit A, with the knowledge of the 3 defendant's agreement, he is not entitled to specific performance. Six days prior to Exhibit II, the 1 defendant executed a deed of mortgage in favour of the 3 defendant for Rs. 14,000 (Exhibit VI, dated the 21 June, 1918). The language of Exhibit II shows, and the Court has also found that Exhibits II and VI are connected and form part of one transaction. The Subordinate Judge says "Exhibit II was executed between the date of the execution of Exhibit VI and the date of its registration. It was clearly the consideration for the low rate of interest provided in Exhibit VI and the low rate of interest in Exhibit 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 fooling 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 Exhibit II, Exhibit VII was obtained by the 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 Exhibit A was inadmissible in evidence on account of the recent decision of the Privy Council in Dayal Singh V/s. Indar Singh (1926) L.R. 53 I.A. 214 : 51 M.L.J. 788 (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. 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 Exhibit A ceased to be of any importance. This was conceded by both sides and the appeal was argued on the footing that Exhibit A is admissible.