P.S. Narayana, J.
1. This Appeal is preferred by the unsuccessful defendants in O. S. No. 28/87 on the file of II Additional Subordinate Judge. Kaklnada. The respondent herein, the plaintiff in the suit filed the suit for specific performance of the agreement of sale dated 4-2-1984 or in the alternative for partition of the schedule property and for allotment of the respective shares or in the alternative relief of refund of an amount of Rs. 2500/- and for costs. The learned Judge on the strength of the respective pleadings of the parties having settled the issues, recorded the evidence of PW--1 and PW-2, DW-1 to DW-3, marked Exs. A-1 to A-7 and Exs. B-1 to B-9 and recorded findings that the condition relating to the approval of plan or the approval of layout had not been complied with by the appellants/ defendants and hence there was some delay and the respondent/plaintiff was ready and willing to perform her part of the contract and further findings had been recorded relating to the condition of cancellation of agreement and the capacity of the respondent/plaintiff to purchase the property and a further finding had been recorded that the recital relating to delivery of possession is neither an addition nor interpolation and the alienation is for legal necessity and hence the minors also are bound by the same and a further finding had been recorded in relation to the rights of defendants 4 to 6 that either on the ground of ratification or on the ground of implied agency in the light of the conduct of the parties and the evidence available on record they are also bound by the agreement of sale Ex. A.1 and accordingly decreed the suit with costs. Hence the present Appeal.
2. Submissions, of Sri V.L.N. G.K. Murthy : Sri. V. L. N. G. K. Murthy, the learned Counsel representing the appellants made the following submissions. The learned Counsel would maintain that the concept of agency and the implied agency or the ratification are conflicting stands since they do not co-exist. Even otherwise there is no specific plea in this regard except one sentence in the pleading and hence this may not be sufficient to infer implied agency and this cannot be taken as a foundation for ratification. The learned Counsel also pointed out to para 9(a) which had been introduced by amending the pleading and had taken this Court through the respective pleadings of the parties, issues settled and also the findings recorded, the notices between the parties and the contents thereof. The learned Counsel also made elaborate submissions in relation to implied agency and ratification while drawing the attention of this Court to the relevant provisions of the Indian Contract Act 1872. The learned Counsel also would maintain that at the lime of the execution of the agreement the same was proceeded on the ground that the executants alone are the owners of the property and hence there cannot be a change of stand now so as to fasten the obligation even on the non-parties to the agreement of sale. The learned Counsel with all emphasis would contend that in the light of the facts and circumstances the non-parties to Ex. A-1 cannot be made liable under Ex. A-1 either on the ground of implied agency or on the ground of ratification and these findings are totally unsustainable. The learned Counsel also pointed out that the minors had attained majority and the question of Karta representing may not arise. The learned Counsel also would contend that the 8th defendant may be competent to alienate representing defendants 14 and 15 also. Likewise, the 1st defendant as Karta may enter into such transactions on behalf of the minors in the event of the transaction being supported by legal necessity. Even otherwise, 18th defendant is a non-party to Ex. A 1. The learned Counsel also explained the minors had attained majority and had chosen to contest the litigation. The learned Counsel also made certain submissions on the aspect of succession of the respective shares under the provisions of me Hindu Succession Act 1956 as amended subsequent therein. The learned Counsel also pointed out that the 34th defendant was not a party to Ex. A-1 and she was impleaded in I. A. No. 469 of 1992. The mere recital relating to the debts may not carry any weight and there is absence of legal necessity in the present case and hence the minors would not be bound by Ex. A-1. The 24th defendant was impleaded in the year 1992 after the period of limitation and there is no specific order saving limitation in this regard and hence the suit is barred by limitation as against the 24th defendant. On the aspect of interpolation relating to the recitals of delivery of possession the learned Counsel had taken this Court through the evidence of PW 2 and also the evidence of PW-1 in this regard and also would contend that in the light of the fact that the advance paid is only of a small proportion it is highly improbable that delivery of possession would have been recited or would have been given as shown in Ex. A-1. The Counsel also would maintain that the relief of specific performance being discretionary relief inasmuch as the respondent /plaintiff approached the Court with unclean hands the relief may have to be negatived. The learned Counsel also explained the contents of Ex. B-2 and would contend that this would show that the respondent/plaintiff was not ready and willing to perform her part of the contract but trying to get some time by introducing certain new conditions like encroachments. Submissions at length were made relating to the aspect of encroachments in the light of the evidence available on record. The learned Counsel also made certain submissions in relation to dereservation and the findings recorded by the trial Court in this regard. The Counsel also would point out that the ground of laches and the finding recorded in relation thereto by the trial Court as on the part of the defendants in a suit for specific performance cannot be sustained. The alleged clarification for the layout plan in Ex. B-2 in fact is a new condition under the guise of clarification and hence it may have to be taken that the respondent /plaintiff was not ready and willing to perform her part of the contract. The learned Counsel also would maintain that the mere fact that the litigation was conducted by one of the parties would not alter the situation as far as the binding nature of Ex. A-1 is concerned. The learned Counsel also placed reliance on certain decisions.
3. Submissions made by Sri. M. V. Durga Prasad : Sri. M.V. Durga Prasad, the learned Counsel representing the respondent/plaintiff had explained in detail the conduct of the parties and the way in which the litigation was conducted and the way in which the appellants/defendants intend to take advantage of dereservation which had been obtained by PW 1 with great difficulty. The learned Counsel also would maintain that if the facts are carefully analysed in the circumstances since the appellants/defendants were not hopeful of retaining the property at all and it was laying waste and useless they are entitled to Ex. A-1 and because of the subsequent appreciation of the property in view of the dereservation the appellants/defendants are contesting the litigation on several technical grounds. The learned Counsel also would explain that in relation to the other share a suit was filed and the same was settled also. Though separate written statements were not filed the very fact that the cross-examination was done by one Advocate would go to show that all these parties are sailing together and hence on the ground of ratification the plaintiff is bound to succeed and the findings recorded by the trial Court are well justified in this regard. The Counsel also pointed out to relevant provisions of the evidence of DW-1, DW-2 and DW-3 as well and had explained the relevant provisions of the Indian Contract Act 1872 in this regard. The learned Counsel with all emphasis would maintain that having taken the services of PW-1 to the maximum extent for the purpose of dereservation and having taken advantage of the same the appellants/defendants cannot turn round and take such pleas which would be definitely impermissible even on the ground of equity. The learned Counsel also would further maintain that on the question of want of legal necessity no evidence on behalf of the minors had been adduced and there is no separate cross-examination even and hence the minors are bound by Ex. A-1. The learned Counsel also explained in this context the scope and ambit of Section 8 of Hindu Minority and Guardianship Act 1956. The Counsel after making elaborate submissions on the notification and denotification and also the legal necessity further explained on the aspect of interpolation and would contend that in the light of the clear evidence of PW-1 and PW 2 and also in the context of such recital being present in yet another agreement also the stand taken by the appellants/defendants cannot be believed. The learned Counsel also explained the reciprocal promises and the duty to speak and how to decide the breach of a condition in relation thereto. The learned Counsel also would submit that on the aspect of failure to purchase except an attempt being made no convincing evidence had been adduced in this regard. The learned Counsel also would submit that the amount in fact had been deposited and the same was withdrawn pending Appeal and the same had been kept in fixed deposit and the respondent/Plaintiff has no objection if the suit amount with the accrued interest also is paid to the appellants/defendants. The learned Counsel also explained the meaning of acquiescence and made elaborate submissions on the aspect of ratification and would ultimately conclude that in the light of the findings in detail recorded by the trial Court the said findings need not be disturbed. The learned Counsel also placed strong reliance on several decisions in this regard.
4. For the purpose of convenience, the parties would be referred to as arrayed in the original suit.
5. The respective pleadings of the parties are as hereunder:
The plaintiff pleaded in the plaint as hereunder:
The defendants 1 to 3 and late Subbarao are brothers and sons of Peri Venkanna. Defendants 4 to 6 are their sisters and 7th defendant is the widow and defendants 8 and 9 are the sons and defendants 10 to 13 are the daughters of late Subbarao. Defendants 14 and 15 are the sons of 8th defendant. Defendants 16 and 17 are the sons and 18th defendant is the unmarried daughter of the 1st defendant. Defendants 19 and 20 are the sons of the 2nd defendant and defendants 21 to 23 are the minor sons of the 3rd defendant. They are all members of joint family. The defendants had agreed to sell an extent of 1378 sq. yards in T. S. No. 154/2 more particularly described in to the schedule which is filed herewith and they have executed an agreement of sale dated 4-2-1984. At the time of agreement they had received an amount of Rs. 2500/- and delivered possession of the site. The sale consideration was agreed to be paid at Rs. 180/- per sq. yard. It is also agreed between the parties that the defendants should get the land measured and receive the sale price for the actual extent of the site arrived at after measurement. The transaction was negotiated by the plaintiffs husband Sri. Ramakrishna Reddy who is looking after her interest. At the time of the agreement the defendants represented that defendants 4 to 6 were not available to sign an agreement and they will join in the sale deed. The defendants had informed Sri Ramakrishna Reddi that the site was under acquisition by the Government for locating the Woman and Child Welfare Centre and the municipality had not agreed for the approval of the layout and that the defendants approached the Director of Town Planning for necessary clearance. These facts were mentioned in the agreement and the defendants agreed to execute the sale deed after getting the necessary clearance from the Director of Town Planning. It was also agreed to in the agreement that the share of minors should be either deposited in the Bank or that they will give security. The plaintiff came to know that the 1st defendant has got an unmarried daughter who is 18th defendant who was not added in the agreement. Subsequently by virtue of Hindu Succession Amendment Act of 1986 she also became entitled to a share. Similarly 3rd defendant also got an unmarried daughter who is 24th defendant and she is also a necessary party. Subsequently Sri. Ramakrishna Reddi approached the concerned authorities and worked out to secure the release of site from acquisition. The Government also issued G.O. to that effect and notified in the Gazette and hence there is person impediment to secure approval of layout from the Director of Town Planning if only the defendants had applied for it. The plaintiffs husband had approached the defendants on several occasions and enquired about the approval of layout by the Director of Town Planning but they were evasive. It appears they have not even applied for the approval. From the conduct of the defendants the plaintiff and her husband were constrained to believe that the defendants are trying to avoid their obligation in completing the transaction. The plaintiff had been always ready and willing to take the sale deed as per the terms of the agreement but the defendants are not cooperating for the completion of the transaction. Hence the plaintiff got vexed and contemplated to give notice. Forestalling such action the defendants got a notice given by their advocate on 20-1 -1987. For this notice the plaintiff gave reply through her Advocate. In the notice of defendants it. was stated as if the Director of Town Planning approved the layout, which is not correct. In the reply notice the plaintiff sought clarification and also enquired about the deposit of minors share in the Bank or giving security. There is no reply for this notice. Even after these notices to plaintiff her husband tried for an amicable settlement but the defendants are procrastinating and dodging all with a view to take unfair advantage of limitation and hence the plaintiff is obliged to file the suit for specific performance of agreement or alternatively for refund of the amount.
Para 9A had been introduced subsequent thereto wherein if was pleaded that the defendants 4 to 6 are also bound by the agreement which is borne out from the notice given by them on 20-1-1987. Even assuming without admitting that their plea is acceptable still the plaintiff is entitled to specific performance of 37/40th share and grant partition of the property and allotment of the said share by way of alternative relief. The plaintiff also had paid Rs. 900/- on 6-7-1986 to the 17th defendant for which he gave receipt. The said amount has to be deducted from the sale consideration. Even otherwise the plaintiff is prepared to forego this amount if the defendants choose to deny the same and it was pleaded that this submission had been made to avoid a comment that a new condition is introduced.
The 4th defendant filed a written statement which was adopted by defendants 5 and 6. It was pleaded in the written statement of the 4th defendant as hereunder:
The 4th defendant and defendants 5 and 6 are married daughters of late Peri Venkanna and Peri Lakshmamma. Defendants 1 to 3 are brothers of the 4th defendant. Another brother by name Peri Subba Rao died in the year 1981. The lather of the 4th defendant i.e., Peri Venkanna alias Venkatavadhani died on 18-2-1958. His wife i.e., the mother of the 4th defendant died on 7-12-1982. The plaint schedule property being ancestral property, the 4th defendant has got a share on the death of their father in 1958 by virtue of the provisions of the Hindu Succession Act of 1956. Subsequently on the death of their mother in 1982 her share also devolved on her sons and daughters in equal shares and so in the plaint schedule property the 4th defendant has got 1 /40th share. Similarly 5th and 6th defendants also got 1/40th share. The 4th defendant and defendants 5 and 6 never agreed to sell their shares to the plaintiff at any time. They did not joints the suit agreement. Till they received the Court summons they had no knowledge about the suit agreement. The executants of the suit sale agreement have no right or authority to deal with the shares of defendants 4, 5 and 6. Further there was no legal necessity to sell the property and so in any view of the matter the suit filed by the plaintiff for specific performance against defendants 4, 5 and 6 is not maintainable under law and the suit is liable to be dismissed. The 4th defendant denied that the plaintiff is always ready and willing to perform her part of the contract. These defendants did not receive any amount said to have been paid as advance. The defendants 4, 5 and 6 are in joint possession of the plaint schedule property along with other defendants and they never parted with their joint possession to the plaintiff at any time. These defendants adopt the written statement filed by defendants 1 to 3 with regard to the other contentions in the plaint which are not specifically repudiated. The suit is liable to be dismissed against defendants 4, 5 and 6 with costs.
The 7th defendant filed a written statement and additional written statement as well. The written statement of the 7th defendant was adopted by defendants 1 to 3, defendants 13 to 16 and 19th defendant. It was pleaded in the written statement of the 7th defendant that the relationship mentioned is correct but it is false to state that they are members of the joint family. It was further pleaded that it is false to state that the defendants have agreed to sell an extent of 1378 sq. yards in T. S. No. 154/2 which is mentioned in the plaint schedule. It is false to state that the defendants executed an agreement of sale on 4-2-1984. All the defendants are not parties to the agreement and only some of the defendants alone are parties to the agreement and only those defendants who are executants of the agreement alone received Rs. 2500/- and it is false to state that possession was given to the plaintiff. In fact the land was measured and the extent came to nearly 1362 sq. yards and the plaintiffs husband is aware of it and as such there is absolutely no difficulty for the plaintiff to have the sale price fixed. It is true the transaction was looked after by the plaintiffs husband Sri. Rama Krishna Reddy but it is false to state that at the time of agreement the defendants represented that defendants 4 to 6 were not available to sign in the agreement and they will Join in the sale deed. No such subject had cropped up and there was no such representation and if there is any such representation it would have found place in the agreement itself. It was pleaded that the allegations in para IV of the plaint are all false. The defendants 1 to 3 and 7th defendant wanted to construct four houses in the plaint schedule property for their own use and occupation. The Municipality refused permission on the ground that the site is under proposal for acquisition by the Government for locating woman and child welfare center. Then the defendants 1 to 3 applied to the Director of Town Planning to denotify the site to enable them to construct houses for their use. These facts alone had been mentioned in the agreement. There is no question of approval of layout by the Director of Town Planning. The only thing required was permission to construct houses and that is different from making layout as dividing into various plots and obtaining necessary permission for that which involves laying of roads, electrical installation leaving space to Municipality etc. What is contemplated under the agreement is permission by the defendants 1 to 3 and 7 to construct houses and what is contained in the agreement is same thing i.e., permission for defendants 1 to 3 and 7 to construct houses. The minor daughter of the 1st defendant is not a party and proper party as she is not the executant of the agreement and the agreement is not executed on her . behalf. The agreement is not binding on her share. It was also pleaded that the allegations in para VII are false and it is false to state that Sri Rama Krishna Reddy had approached the concerned authorities and worked out to secure the release of site from acquisition. It is defendants 1 to 3 who got it released and defendants 1 to 3 and 7 informed the same to the plaintiff and her husband and requested them to take sale deed. Bui the plaintiff and her husband did not turn up to take the sale deed. There is no question of the defendants securing layout from the Director of Town Planning and so also the defendants applying for it. The allegations in para 8 of the plaint are denied and it was further pleaded that the plaintiffs husband had approached the defendants on several occasions and enquired about the approval of layout by the Director of Town Planning and they are evasive etc. There is no understanding in the agreement that the defendants should apply for layout. It is the plaintiff who wants to take advantage of gaining time by introducing condition for layout. There is no question of the defendants 1 to 3 etc. trying to avoid their obligation in completing the transaction. The allegations in para 9 of the plaint are also pleaded to be false. It was also further pleaded that it is false to state that the plaintiff had been always ready and willing to take the sale deed as per the terms of the agreement and it is false to state that the defendants are not cooperating for completion of the transaction. It was also denied that the plaintiff got vexed and contemplating to give notice etc., and forestalling such action the defendants got issued notice dated 20-1-1987. It was admitted that the reply was given by the plaintiff but the contents of the reply had been denied. The contents of the notice of the defendants are deliberately mis-interpreted by the plaintiff to suit her convenience. There is no understanding at all for layout. It is false to state that the plaintiff and her husband after notices are exchanged again tried for amicable settlement and the allegation that they are procrastinating and dodging with a view to take unfair advantage of limitation are false. The plaintiff is not entitled for specific performance and there is no cause of action for the suit. The 7th defendant further pleaded that the plaintiff was never ready and willing to perform her part of the contract and she was never ready with the money. The defendants 1 to 3 and 7th defendant were always ready to execute the sale deed. The agreement is not a possessory agreement. In fact it is not described so. From the photostat served on defendants 1 to 3 and 7th it was found that the recital 'possession was given' had been interpolated with a view to have unlawful gain. It was further pleaded that it is ridiculous to suggest that possession of the property was given for mere paltry advance of Rs. 2.500/-. Further there is no possibility for the defendants to give possession as it is occupied by encroachers and they were made to vacate after initiating proceeding against them. Para-5 of the reply notice (sic) defendant 27-2-1987 given on behalf of the plaintiff shows that the plaintiff was not in possession. The 7th defendant learned that the plaintiff had been trying to encroach on the plaint schedule site under the guise of injunction order obtained and so the possession is not with the plaintiff. It was further pleaded that the plaintiff with a view to gain time and with a view to throw burden on the defendant in the reply as well as plaint introduced a new condition which was not in the contemplation of the parties that the defendants agreed to get approved layout and this was Introduced not knowing what is a layout. There is no condition in the agreement from any layout. What is contemplated and recited in the agreement is as the site is allotted for child social welfare and it would be acquired, permission had been refused to defendants 1 to 3 and 7 for residential purposes and so the defendants 1 to 3 and 7 approached the Director of Town Planning and got the site again converted into residential use and so the clause under the agreement had been fulfilled and there is no further part to it. The site had been converted into residential by the G. O. of the Director of Town Planning and it is known to the plaintiff and her husband in 1985 as they also followed the proceedings. It was further pleaded that the plaintiff was never ready and willing to perform her part of the contract. The transaction fell through because even in the reply the plaintiff did not come forward to take the sale deed. The defendants gave notice when the plaintiff did not turn up to take sale deed. As the transaction fell through because of the conduct of the plaintiff she had also forfeited the advance paid and after the period in the notice was over the defendants treated the agreement as cancelled. The plaintiff did not come before the Court with clean hands and so in any view of the matter the plaintiff is not entitled to the discretionary relief of specific performance.
In the additional written statement filed by the 7th defendant certain pleas had been taken relating to the aspect of partition and the relief of specific performance in respect of the shares and the question of Court fee.
The 15th defendant filed a written statement which was adopted by defendants 14, 21, and 23. Virtually the 15th defendant had adopted the written statement filed by the 7th defendant in all respects excepting the following defences not raised by the 7th defendant. It was pleaded that the suit agreement is not binding on the 15th defendant and defendants 14, 21, and 23 as they are minors and there was no legal necessity to sell the property.
The 20th defendant filed written statement pleading as hereunder:
It was pleaded that he was a minor on the day when his signature was taken by the plaintiffs husband on the suit sale agreement. As the plaintiff husband obtained his signature on the suit agreement while he was a minor the same is not binding on him. The plaint schedule property being ancestral property he has got a share in the same. The 2nd defendant is an officer in state bank of India and there was no need for him to sell the property. There was no legal necessity contemplated under Hindu Law to sell the plaint schedule property and the sale agreement is not binding on him. The recitals in the sale agreement with regard to the necessity to sell the land are all false and appear to have been introduced at the in stance of the plaintiffs husband to give a colour of reality to the sale agreement. Even those recitals do not constitute legal necessity and as such it is not binding on the 20th defendant who was a minor at the time when his signature was obtained on the suit sale agreement. The possession of the land was not given to the plaintiff or her husband at any time. The possession had been always and continued to be with the defendants who are owners of the property. The plaintiff did not get ready with the balance of sale consideration and she was not ready to take the sale deed at any time till today. So in any view of the matter the discretionary relief of specific performance cannot be granted to the plaintiff.
The 24th defendant filed a written statement pleading that the suit agreement is not binding on the defendant and the defendant was a minor by the date of the agreement and there was no legal necessity to sell the property.
6. On the strength of the respective pleadings of the parties, the following issues and additional Issues were settled and findings had been recorded in relation thereto.
Issues:
(1) Whether the plaintiff is entitled for specific performance of agreement of sale dated 4-2-1984 or in the alternative for refund of the advance amount of Rs. 2,500/- with interest?
(2) Whether the plaintiff was never ready and willing to perform her part of contract as pleaded in the written statement of 7th defendant?
(3) Whether the agreement dated 4-2-1984 is cancelled after the period in the notice is over as pleaded in the written statement of 7th defendant?
(4) To what relief?
Additional Issue framed on 16-9-1993:
Whether the suit agreement is not valid and binding on 24th defendant?
Additional Issue framed on 16 8-1994:
(1) Whether the plaintiff is entitled to partition of the properties as alternative relief?
(2) Whether Court fee paid is correct?
7. On the strength of the respective pleadings of the parties, the findings recorded by the trial Court and the submissions made by the Counsel on record, the following Points arise for consideration in the present Appeal.
(1) Whether the plaintiff is entitled for the relief of specific performance in relation to the agreement of sale in question in the facts and circumstances of the case?
(2) Whether the plaintiff is entitled to the relief of specific performance at least to the extent of the respective shares of the parties to the agreement of sale in question?
(3) Whether the plaintiff is entitled for refund of the amount in the facts and circumstances of the case?
(4) To what relief?
8. Point No. 1 : The evidence of PW-1, the husband of the plaintiff and the evidence of PW-2 - the scribe, DW-1-2nd defendant, DW-2 - 6th defendant, DW-3 -8th defendant, is available on record. Ex. A-1 is the agreement of sale dated 4-2-1984. Ex. A-2 is the office copy of the notice. Ex. A-3 is the postal acknowledgment. Ex. A-4 is the Government Memorandum No. 835/02/B4-2 M. A. of Andhra Pradesh dated 22-1-1985. Ex. A-5 is the relevant page in the A. P. Gazette. Ex. A-6 is the copy of G. O. Ms. No. 180, M. A. of Andhra Pradesh. Ex. A-7 is the agreement executed by Peri Annapuranamma w/o. Viswanadham and her sons in favour of the plaintiff dated 4-2-1984. Exs. B-1 and B-2 are the office copy of the notice and the reply notice. Exs. B-3 to B-5 are the positive photographs and the corresponding negatives. Ex. B-6 is the reply given by the Director of Municipal Administration, Andhra Pradesh, Hyderabad, dated 21-1-1983. Ex. B-7 is the plan and proceedings of the Commissioner, Kakinada dated 4-5-1985. Ex. B-8 is the relevant page of A. P. Gazette Part-1. Ex. B-9 is the proceedings of the Secretary of Government of Andhra Pradesh addressed to the 1st defendant dated 23-4-1984.
9. It is needless to say that the suit is filed for enforcement of the agreement of sale Ex. A-1 and a look at the recitals of Ex. A-1 may be essential for better appreciation of the respective contentions of the parties in the back ground of the facts and circumstances of the case. Ex. A-1 reads as hereunder:
(Vernacular text omitted).
The conditions stipulated in Ex. A-1 which had been referred to supra are self explanatory. It is not in serious controversy that defendants 4 to 6, sisters are not parties to the agreement of sale. It is also not in serious controversy that the 24th defendant who was impleaded as a party subsequent thereto also is not a party to Ex. A-1 Submission in elaboration were made in relation to the concept of implied agency or the concept of ratification. The said question would assume some importance to decide the question whether the non-parties to the agreement of sale in question are bound by the agreement of sale or not. In Indian Contract Act and Specific Relief Act, Pollock and Mulla, Volume II, on the aspect of 'implied ratification' it was stated:
Ratification can be implied from any act which reflects the conscious adoption of the transaction. It can even be inferred from silence or mere acquiescence, and like the grant of authority, need not be communicated to the third party. Taking the benefit of the transaction is the strongest, and the most usual evidence of tacit adoption. Accepting the results of the agent's proceeding, whether obviously beneficial to the principal or not, will have the same effect.
Reliance was placed on Imperial Bank v. Mary Victoria AIR 1936 PC 193 wherein their Lordships of the Privy Council while dealing with 'principal', 'agent' and 'ratification' held:
The first essential to the doctrine of ratification with its necessary consequence of relating back, is that the agent shall not be acting for himself, but shall be intending to bind a named or ascertainable principal. Hence, where the agent puts some of the principal's money in his pocket, there cannot be any question of ratification by the principal, as the agent cannot be deemed to have taken money for himself as agent for the principal. If the act has been authorized, the contract between the principal and the agent would be the ordinary contract of loan.
Reliance was placed on Hanuman Chamber of Commerce v. Jassa Ram AIR 1949 East. Punjab 46 wherein it was held that where the initial reference to arbitration on behalf of firm is made by one of the partners without any express or implied authority from his other partners, there is nothing to prevent such other partners from ratifying his act which was unauthorized at its inception. It was also held that ratification need not be by any express act or declaration and may be implied from conduct and it may be interred from mere acquiescence or silence or inaction on the part of such other partners.
10. On a careful scrutiny of the pleadings of the parties in general and the plaint in particular on the ground of implied agency or ratification there are no clear averments in relation thereto and a casual plea had been specified. Certain submissions were made that the plaintiff and the husband of the plaintiff PW- 1 entered into Ex. A 1 being conscious of the shares of the non-parties to Ex. A-1 and even otherwise the concept of implied agency or ratification being contradictory, both the pleas cannot be sustained. The Counsel representing the plaintiff had principally concentrated on the concept of ratification in the light of the conduct of the parties and the silence on the part of these non-parties to Ex. A-1 and also the way the litigation was conducted and how the other parties were playing the prominent role in entering into Ex. A-1 even on behalf of there which cannot be taken as implied ratification. The evidence of DW-2 is of some importance in this context. DW-2 deposed that she does not know at all the plaintiff or her husband and they never met her and they got a site at Kakinada and defendants 4 and 5 are her sisters. The 5th defendant is residing at Bobbili and she is suffering from paralysis and she cannot even walk. The 4th defendant is a deaf and 80 years old and she cannot move out and she is residing in a village in Bobbili. She further deposed that she does not know anything about the agreement of sale Ex. A-1 and they were not informed about the agreement by her brothers and her sisters also do not know about Ex. A-1 and they have no necessity to sell their shares in the site and they never attempted to sell their shares of site. DW-2 further deposed that the property is still joint and they have not yet divided the said property. They came to know about the agreement only when she received some paper and she did not receive any advance as alleged in the agreement and they have no intention to sell their share of the site to the plaintiff. In cross-examination no doubt this witness deposed that the 8th defendant is looking after the suit on behalf of themselves and the brothers always have been cordial and affectionate towards each other and they never questioned the acts of the brothers at any time and she does not know the defence. This witness also deposed that if she gets a share she intends to construct a house and she does not know how much extent each will get in the suit land. Even if it is 50 sq. yards she intends to raise a hut in the said site. She had denied the suggestion that because the individual shares would not be convenient for enjoyment the suit site was agreed to be sold. She further deposed that there was no necessity for her brothers to incur debts. She denied the suggestion that because the suit site is vacant and it is not fetching any income they sold the same and she also denied the suggestion that they agreed to sub scribe their signatures to the sale deed and only on that condition the suit agreement as executed in favour of the plaintiff and she had denied the other suggestions also. This is the evidence of DW-2.
11. The evidence of PW-1 is available on record and no doubt PW-1, the husband of the plaintiff, deposed that defendants 4 to 6 were not present at the time of agreement but it was agreed by other executants that they would join them in executing the sale deed. This appears to be the stand of the plaintiff and her husband, PW-1. had deposed as referred to supra in this regard. The Division Bench of Gauhati High Court in Sailala v. Nagurtaiveli AIR 1980 Gauhati 70 while dealing with estoppel by acquiescence held:
In the instant case conduct of 'A' was such that he acquiesced in the ownership of 'B' in the suit premises, as various notorious acts were done in the suit premises between the wife and 'B' and the near relatives of 'B' while 'A' was alive he remained silent. In such a case, the doctrine of estoppel by acquiescence comes into play. The proper sense of the word 'acquiescence' is that if a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right and takes no objection while the act is in progress, he cannot afterwards complain.
In Arosan Enterprises Ltd. v. Union of India : AIR1999SC3804 the Apex Court held while dealing with the aspect of duty to speak and failure to speak as hereunder (Para 17):
There was, in fact, a duty to speak and failure to speak would forfeit ail the rights of the buyer in terms of the Agreement. Failure to speak would not, as a matter of fact, jeopardizes the sellers interest neither the same would authorize the buyer to cancel the contract when there has been repeated requests for acting in terms of the agreement between the parties by the seller to that effect more so by reason of a definite anxiety expressed by the buyer.
A Full Bench of this Court in P.G. Reddy v. Golla Obulamma : AIR1971AP363 while dealing with the recovery of mortgage debt by one of the co-heirs and the mortgagee and the other co-heirs not joining within the period of limitation held at paras 29 and 31 as hereunder:
Section 6 of the Hindu Succession Act, as already stated, is divided into two parts each part has in reason its appointed province. The first part recognizes the operation of Mitakshara law in relation to devolution of interest of a deceased coparcener on all the surviving coparceners by rule of survivorship even though his death might have been placed after the commencement of the Hindu Succession Act. In fact it, in express terms, prohibits the operation of Act 30 of 1956 to such cases. But this prohibition, as is obvious from the language of the proviso, which is of vital importance, is not unqualified. In fact the section read as a whole would show that the rule in the first part is absolute only in cases not falling within the ambit of the proviso. So then, if a case is attracted by the proviso, the rule in part once will not be applicable at all. The proviso in fact is categorical that in cases covered by that part, the interest of the deceased in a Mitakshara coparcenary property shall not devolve by survivorship but only in accordance with the relevant provisions of the Hindu Succession Act in relation to testamentary or intestate succession, as the case may warrant. Thus while determining whether the rule of survivorship will apply to a given case, it must be seen whether the facts of that case fall squarely within the ambit of the proviso In that section. If they come within it, it is that part and not the first part that will be applicable to the devolution of interest of the coparcener in the Mitakshara coparcenary property. The first part is thus applicable only to cases outside the pale of the second part which satisfy the conditions of the first part. A reading of the section further makes it abundantly clear that both the parts put together provide for the entire gamut of law contemplated by the Act on the question of devolution of interest of a deceased coparcener in the Mitakshara coparcenary property on his death. If the deceased has left only coparceners, the rule of survivorship will apply. But if he has left any female relatives specified in class 1 of the schedule viz., daughter, widow, mother, daughter of a pre-deceased son, widow of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son or widow of a pre-deceased son of pre-deceased son, or even a male relative claiming through females specified in that schedule such as son of a pre-deceased daughter, the devolution will be only under Act 30 of 1956 and not in accordance with law of survivorship. All the heirs of deceased, whether coparceners or otherwise, will then get their due share only under the Act. If the deceased coparcener had died intestate his interest would devolve by intestate succession upon the persons who are amongst, the 12 preferential heirs specified in Class I of the schedule. They will inherit that interest simultaneously as provided by Section 9 of the Act and more than one heir succeeding together shall take the interest as tenants-in-common and net as joint tenants. Explanation 2, however denies the benefit of the proviso to a person who had separated himself from the coparcenary before the death of the deceased and also to his heirs. His right will be ignored as though he was totally disinherited. Explanation 1 introduces out of necessity a legal fiction for ascertainment of interest of the deceased coparcener. His interest according to it will be deemed to be the share chat would have been allotted to him if there was a partition immediately before he died irrespective of the fact whether he could claim such partition or not on that day. The need for the legal fiction arose out of impelling necessity for according to Mitakshara law so long as there is no partition no coparcener can predicate that he has got a definite share in the coparcenary property. The legal fiction was designed for a limited purpose viz., for computation of the interest of the deceased coparcener for purposes obtained devolution of the same on his heirs so that there may be no difficulty in giving effect to the proviso. The explanation thus is connected mainly and essentially with the proviso. The term 'interest' no doubt is used even in the first part of the section. But the explanation is of no practical importance in relation thereto for there can be no occasion for separation or ascertainment of this interest if the case fell exclusively within the first part of the section. In fact in that event both the proviso and the explanation would be of no relevance to the case. The case would be governed by the rule of survivorship and not by the provisions of the Hindu Succession Act.
Thus the position is that the coparcenary will continue as ever with the Karta managing the entire coparcenary property Including the interest of the deceased coparcener if all the heirs of the deceased are the coparceners themselves. The Karta, as manager, can then effectively bring a suit for enforcement of the mortgage security rep resenting all the heirs of the mortgagee. The other coparceners who have Interest in the mortgage security are not necessary parties to such action, but they are only proper parties to the same and their non-Inclusion or inclusion out of time will not be fatal to the suit. On the other hand if the proviso of Section 6 of the Act applied on account of the existence of the heirs referred to therein, there will be of course no disruption of joint family status but the coparcenary property will not Include the interest of the deceased coparcener by reason of succession under the Act and it will not then be available to the coparceners and heirs as coparcenary property and the Karta in relation thereto therefore cannot exercise his powers as a Karta. The interest having devolved on various heirs in specified shares and such heirs being tenants in common in relation to that property, the Karta of the joint family property to which the coparceners belong cannot represent the female heirs who are not coparceners, In fact, all being tenants in common in relation to the interest of the deceased coparcener, each one of them, as already discussed as the heir of the mortgagee is a necessary party to the suit for enforcing the mortgage security. That is the position warranted by Section 6 of the Hindu Succession Act, read with Section 67 of the Transfer of Property Act, Section 45 of the Contract Act and Order 34, Rule 1, C.P.C. The clear language of that section leads to that conclusion.
PW-1 on the aspect of the relationship of the defendants deposed that he had negotiated on behalf of the plaintiff, his wife in relation to the suit transaction. Defendants 1 to 3 are the sons of late Venkanna who died m 1958. Venkanna's wife also died. Defendants 4 to 6 are the daughters of late Venkanna. Venkanna also got another son by name Subba Rao. 7th Defendant is his wife and defendants 8 and 9 are the sons and defendants 10 to 13 are the daughters of late Subba Rao. Defendants 14 and 15 are the sons of 8th defendant. Defendants 16 and 17 are the sons of the 1st defendant. The 8th defendant is the unmarried daughter of the 1st defendant. Defendants 19 and 20 are the sons of the 2nd defendant. Defendants 22 and 23 are the minor sons of the 3rd defendant and all the defendants constitute joint family. This witness also deposed that defendants 4 to 6 were not present at the time of the agreement but it was agreed by the other executants that they would join them in executing the sale deeds. This witness also deposed that by the date of Ex. A-1 he knows that defendants 1 to 3 got sisters but however PW-1 deposed that by the date of Ex. A-1 he was not aware whether the sisters of defendants 1 to 3 also have right in the schedule property and the sisters of defendants 1 to 3 are impleaded in the suit and they are defendants 4 to 6. This witness further deposed that defendants 4 to 6 are impleaded in the suit thinking that they have also right in the schedule property and they had not requested the defendants 4 to 6 to Join defendants 1 to 3 in executing Ex. A-1. At the time of filing of the suit he came to know through his Advocate that defendants 4 to 6 also to be made parties to the suit. That is the evidence of PW-1 in this regard.
12. PW-2, the scribe of Ex. A-1 and also the scribe of Ex. A-7 which is yet another agreement in relation to which the matter had been compromised, had been examined. The 2nd defendant was examined as DW-1 who deposed that defendants to to 3 are brothers and they got another brother by name Peri Subbarao who died and defendants 7 to 13 are the legal representatives, The 7th defendant is his wife. Defendants 4 to 6 are his sisters. Defendants 14 and 15 are the sons of 8th defendant. Defendants 16 to 18 are the children of the 1st defendant. Defendants 19 and 20 arts the children of this witness.... Defendants 21 to 23 are the sons of 3rd defendant, 24th defendant is the daughter of the 3rd defendant. The schedule property is their ancestral property and his sisters did not join the execution of Ex. A- 1. DW-3 is the 8th defendant in the suit who had deposed about the relationship of the defendants inter se. From the nature of the evidence of PW-1, DW-2, DW-1 and DW-3 the picture is clear that all the parties interested and having rights in the subject-matter of the suit had not joined the execution of Ex. A-1 and the stand taken by the plaintiff is that even the non-parties are bound by the said agreement either by virtue of the concept of implied agency or the concept or ratification, Certain findings had been recorded by the trial Court in this regard. The mere fact that separate written statements were filed but the cross-examination was common and the mere admission by DW-2 that 8th defendant had been looking after the litigation and the mere fact that the brothers and sisters have been affectionate, these factors by themselves cannot be taken as an inference so as to draw the concept of either implied agency or the concept of ratification into it for the purpose of making non-parties to Ex. A-1 also liable under the said transaction entered into by the parties to Ex. A-1. This evidence available on record in the considered opinion of this Court is insufficient so as to fasten the liability as against the non-parties to the agreement of sale in question.
13. It is no doubt true that the major sharers are parties to Ex. A-1 either as individual sharers or respective kartas of the family representing the minors. It is needless to say that the 24th defendant was impleaded as a party subsequent thereto who is a non-party to Ex. A-1, Though the concept of joint family had been pleaded from the evidence available on record it is not clear who is actually the karta of the family. It may be that the respective parties are the natural fathers representing the respective minors. Beyond that nothing more can be said in this regard.
14. On yet another aspect, on the question of readiness and willingness to perform a part of the contract, submissions at length were made. The stand taken by the plaintiff is that she has always been ready and willing to perform her pan of the contract and on the contrary the stand taken by the defendants is that for the purpose of gaining, some time some new condition had been introduced. The terms of Ex. A-1 had been relied upon in this regard. Reliance also had been placed on C. Panduranga Rao v. V. Shyamala Rao : 1999(4)ALT270 ; K.S. Vidyanadam v. Vairavan : AIR1997SC1751 ; P. Purushotham Reddy v. Pratap Steels Ltd. : AIR2003AP141 ; Smt. Katip Bibi v. Fakir Chandra Ghosh : AIR1960Cal187 and also Sheikh Farjan Mian v. Teju Sahu 1999 (3) CCC 584 (Pat).
15. It is pertinent to note that it is a case of dereservation of the schedule property. PW-1 no doubt deposed that because of his efforts only the dereservation was made whereas contrary stand was taken by the defendants. It is no doubt true that Ex. B-1 was Issued after sufficient lapse of time after dereservation. Yet another condition was stipulated in Ex. A-1 with regard to measuring the site and the sale price to be arrived at in accordance with the actual extent. In this context it may be appropriate to have a look at the contents of Ex. B-1, dated 20-1-1987 and Ex. B-2, dated 27-2-1987 - the office copy of the notice and reply notice referred to supra read as hereunder:
Ex. B-1
Under the instructions of my clients 1. Smt. Peri Rajeswari w/o. Subbarao, 2. Peri Venkata Rao s/o. Subbarao, 3. Peri Venkatasurya Subrahmanya Ramalingeswara Rao, 4. Peri Sankara Rajeswara Rao and 5. Peri Subrahmanyam, 4 and 5 being minors by guardian father Peri Venkata Ran, 6. Peri Lakshmi d/o Subbarao, 7. Ganti Venkataramanamma w/o. Suryanarayana, 8. Kappagantula Venkataratnam w/o. Mallikarjunarao, 9. Peri Lalitha d/o. Venkat Subbarao, 10. Peri Bhaskara Rao s/o. Venkanna, 11. Peri Venkata Satyanarayana Murthy s/o. Bhaskara Rao, 12. Peri Satya Narasirnham, 13. Peri Krishna Murty s/o. Venkanna, 14. Peri Siva Prasad s/o. Krishna Murty, 15. Peri Srinivasa Rao s/o. Krishna Murty, 16. Peri Mohana Rao s/o. Venkanna, 17. Peri Srinivasa Rao, 18. Peri Ravindra Babu, 19. Peri Balasubrahmanyam, Nos. 17 to 19 being minors by guardian and father Peri Mohana Rao, I issue the following notice to you.
1. You have obtained a sale agreement D/- 4-2-1984 from my clients for the purchase of 1378 sq. yards of site covered by T.S. 154/2, Ward No. 1, Block No. 6 of Kakinada Municipality, belonging to my clients for a sale consideration @ Rs. 180/-per sq. yards amounting to a total consideration of Rs. 2.47,840-00 and paid an advance amount of Rs. 2.500/- (Two thousand five hundred) only to my clients from out of the said sale consideration. As per the terms of the said sale agreement you have to obtain the sale deed from my clients after paying the full consideration at your cost after the said property was approved by the Director of Town and Country Planning, Hyderabad. My clients have already obtained the said approval long time back and my clients are ready and willing to execute the sale deed after receiving the entire sale consideration.
2. Take notice you are hereby requested to pay the remaining balance of the sale consideration to my clients and get the sale deed registered at your cost within three days from the date of receipt of this notice. Failing which my client will take necessary action through Court and obtain necessary reliefs along with incidental costs.
Ex.B-2
Under instructions from my client Smt. Sathi Adllakshmi w/o. Sri Ramakrishna Reddi, I state as follows in reply to your notice dt. 20-1-87 issued on behalf of your clients Smt. Peri Rajeswari and others:
1. The averments in your notice are all not true. It is true that my client obtained an agreement of sale on 4-2-84 and paid Rs. 2,500/- as advance. By the time of sale agreement the site was under acquisition by the Government for locating the Woman and Child Welfare Centre and the Municipality did not approve the layout and that you have approached the Director of Town Planning for necessary clearance. These facts are mentioned in the agreement. It is also agreed to in the agreement that the share of sale consideration of minors should be either deposited in the Bank or that you will give security.
2. Though it was your obligation to secure the release of the site from acquisition my client's husband approached the authorities and helped your clients in obtaining the release of the site from the acquisition. The Government have issued the G.O. to this effect and notified in the Gazette. This part of it is not mentioned in your notice.
3. Thus the acquisition part was cleared. Your clients have to submit the layout for approval by the Director of Town Planning. But it appears that your clients have not applied to the Municipality and the Director of Town Planning for the approval of the layout. It is surprising to see from your notice as if the Director approved the layout. My client's husband contacted your clients and requested them to apply for the approval but they were telling him that they would apply. You are requested to clarify the position and send a photostat copy of the approved layout and the order of the Director of Town Planning.
4. Your notice is silent with regard to the measurements of the land. It is not stated whether your clients got it measured and the extent of the site arrived at if measurements were taken. Equally your notice is silent with regard to the deposit of minor share in the Bank or the security. You are requested to clarify this position also.
5. Recently my client's husband came to Kakinada to request your clients to execute the document but he found that some labourers put up their huts. When he enquired your client about this they said that some encroachments were already removed and other would vacate shortly and that your clients are taking steps to make them vacate.
6. All the above aspects require your clarification to enable my client to take the sale deed. You are requested to send your reply urgently. We have to receive a reply in a couple of days.
The stand taken by PW-1 is that they had required clarification in relation to the layout approval and nothing more or nothing beyond. PW-1 deposed that the price of the site was fixed at Rs. 180/- per sq. yard and it was represented that the property fell to their share in partition and the details of partition were mentioned in the agreement of the defendants and the Southern portion and Northern portion fell to the share of the other branch. On the same day they obtained an agreement even in respect of the Northern portion in the name of his wife. They paid an advance of Rs. 2.500/ under Ex. A-1, This witness also deposed that possession of the schedule site was delivered to them under Ex. A-1 and it was also recited thereunder that by the date of Ex. A-1 the schedule site was under acquisition for locating Women and Child Welfare Center. This witness also deposed that it was also agreed that they have to co-operate with the defendants in requisitioning the schedule site and the sale deed was agreed to be executed after requisition. In so far as the articles are concerned it was agreed that the value of their share should be deposited in a Bank or the defendant should offer the other immovable properties as security and he made efforts for requisitioning with the Director of Town Planning and get the property derequisitioned. This witness also deposed that it is not correct that the defendants themselves got the property derequisitioned. He also further deposed that after derequisitioning they demanded execution of the sale deeds but they postponed the same. This witness further deposed that before filing the suit the plaintiff got issued notice to the defendants. Ex. A-2 is the office copy of the said notice and the acknowledgments are Ex. A-3. This witness also deposed that they obtained another agreement in respect of the adjacent site and they filed a suit for specific performance and the same was compromised. This witness also deposed about his salary and his financial capacity. This witness further deposed that he does not remember whether his wife received any notice from Sri K. Jayaram, Advocate, issued on behalf of defendants 1 to 3, 7 and 6. The sale consideration under Ex. A-1 is more than Rs. 2 lakhs and below Rs. 3 lakhs. He cannot say the correct amount without seeing the agreement and without calculation. This witness also deposed in detail about the aspect of delivery of possession. PW-1 further deposed that by the date of Ex. A-1 there was no third party in possession of the suit site. This witness PW-1 also deposed that the plaintiff got Bank account with Kakinada Town Bank, State Bank of Hyderabad, Kakinada and Andhra and State Bank of India at Visakhapatnam and the pass books can disclose that an amount of more than Rs. 2 lakhs is to the credit of the plaintiff. PW-1 further deposed that by the date of Ex. A-1 defendants 1 to 3 made applications to Kakinada Municipality for permission to construct a house in the schedule site and the Municipality refused grant of permission because the same was earmarked for Women and Child Welfare Centre in the master plan. This witness also deposed that he knows what is the meaning of layout and in the layout permission for roads and electricity have to be shown and play ground also to be allotted. Ex. A-1 does not say anything about the layout. By the date of Ex. A-1 the intention was to get the schedule site converted from non-residential to residential area but the defendants used the word 'layout'. The words 'layout' are not mentioned in Ex. A-1 but by the words 'plan approved' he meant as layout. This witness also deposed that the Government had converted the schedule site from non-residential to residential area and defendants 1 to 3 made applications to Town Planner, Hyderabad for conversion of the schedule site from non-residential to residential even by the date of Ex. A-1. After the conversion made by the Government there is nothing more to be done by the defendants to execute the sale deeds. Ex. A-4 is the memo of the Government dated 22 1-1985. Ex. A-5 is the draft notification made by the Government in the Gazette. Ex. A-6 is G.O.Ms. No. 180, Municipal Administration, dated 8-4-1985 and he obtained Exs. A-4 to A-6 from the Secretariat. This witness also deposed that he had obtained Exts. A-4 and A-6 and he did not issue any notice to the defendants. This witness, PW-1, was cross-examined. He deposed in cross-examination that the reason for disposing of the schedule property is to meet the expenditure in connection with the marriage of the female issues and education of children and in the agreement it was further stated that there are sundry debts to be discharged and he did not enquire about the debts and so far he had not made any enquiry about the debts. The suggestions that they have no interest to alienate the property had been denied. This witness also deposed that schedule site is still lying vacant and the huts alleged in Ex. B-2 are not in existence. He specifically denied the suggestion stating that it is not true to state that there were no huts in the schedule site and only to get the matter delayed the same had been alleged in the notices. This witness was cross-examined relating to the interpolation of the recital of delivery of possession in Ex. A-1 and no doubt the same had been denied, PW-1 was cross-examined in relation to Ex. A-2 also. He also deposed that it is not true that under Ex. B-2 he introduced new terms of contract and, therefore, the defendants treated the agreement Ex. A-1 as cancelled and hence he is not entitled for the relief of specific performance. In re-examination this witness further clarified certain aspects.
16. DW-1 deposed that by the date of Ex. A-1 they applied to the Municipality for construction of house in the schedule site and the Municipality had not given approval on the ground that the same was earmarked in the master plan for Social Welfare Department and thereupon they applied to the Government to denotify the schedule site and PW-1 had knowledge of the same. He deposed that an advance of Rs. 2.500/- was paid under Ex. A-1 but possession was not delivered because the advance represents only one per cent of the sale consideration. This witness also deposed that the recital at the end of page No. 2 of Ex. A-1 that possession of the schedule property was delivered was not there when Ex. A-1 was executed. This witness also deposed that if the Government does not denotify the suit agreement stands cancelled and the advance to be refunded and the only condition they have to fulfill is that they should get the site denotified. This witness further deposed that on the efforts made by the 8th defendant denotification was issued by the Government and this witness specifically denied the suggestion that the denotification was done at the instance of PW-1. It was further deposed by this witness that after denotification they informed PW-1 to obtain the sale deed and PW-1 at that time was at Visakhapatnam. The plaintiff had not performed her part of the contract and was not ready to obtain the sale deed and to pay the balance of sale consideration and hence they got issued the notice Ex. B-1 which already had been referred to supra and the reply Ex. B-2 was given and the contents of Ex. B-2 also are self-explanatory as specified supra. This witness asserted that the schedule property continues to be in their possession and there is no fencing to the schedule site and he filed photos along with the negatives Exs. B-3 to B-5. On receipt of Ex. B-2 the 8th defendant sent word to PW-1 that sale deed not to be obtained and the agreement to be treated as cancelled. The plaintiff did not issue any notice expressing her readiness and willingness to obtain the sale deed on payment of balance of sale consideration. This witness also deposed that there is no need of money for maintenance of the minors. This witness further deposed that because the plaintiff was not having money she had not obtained the registered sale deed from them and this witness further deposed that they have nothing to do with the agreement or compromise between the plaintiff and Annapurnamma and they are not liable to refund the advance since the plaintiff committed default. This witness was further cross-examined at length relating to his family affairs and also the suit for partition. This witness further deposed that the 8th defendant gave instructions to Advocate to contest the suit and he also knows all the facts relevant to the suit. Certain questions were put to this witness in relation to the 7th defendant filing the written statement and she being the main contesting party. Several questions were put in relation to how the brothers have been eking out their livelihood. This witness, DW-1, also deposed that the 8th defendant used to inform them about the negotiations though he had not written any letters. Prior to the suit agreement they did not offer the schedule property for sale to any others and prior to the suit agreement he had no dealings with PW-1. On account of pressure from PW-1 they agreed to sell the schedule property. This witness explained the pressure to mean that PW-1 wanted to purchase the adjacent site from Annapurnamma, w/o. Viswanadham and because their cousins wanted to sell away their site which is adjacent to this site they also intended to sell away their site. The road for both the sites is the same and both to the agreements were scribed by PW-1 and he had not seen the contents of Ex. A-7. Several questions were put in relation to the recital of delivery of possession and also the aspect of denotification. This witness also deposed that he was meeting PW-1 for every one and one and half months when he was transferred to Visakhapatnam. From August 1984 to July 1988 he was at Visakhapatnam and he had been requesting him to obtain the registered sale deed. There is no impediment for executing and registering the sale deed by them. This witness specifically deposed that after denotification they were convinced that the plaintiff is evading to obtain sale deed. There is no specific reason as to why they did not issue any notice to the plaintiff in spite of her evasion to obtain sale deed until Ex. B-1. A specific question was put that 'Is it not correct that just before the agreement is getting time-barred you got the notice issued ?' This witness answered 'I did not observe whether I got notice Ex. B-1 issued just prior to the agreement was getting barred by time'. This witness also deposed that there is no specific reason for fixing three days' time in Ex. B-1 notice and he did not inform PW-1 orally subsequent to Ex. B-1 about the alleged cancellation of agreement and he does not know whether PW-1 is an affluent person, but however, this witness deposed that when they entered into the suit agreement they thought that the plaintiff was an affluent person but in January 1987 he got doubt about the affluence of plaintiff. This witness specifically denied other suggestions.
17. DW-3 is the 8th defendant who deposed about all the details and in substance taking the same stand which had been taken by DW-1. This witness deposed about the documents and also the 1st defendant receiving memorandum Ex. B-9 from the Government dereserving the schedule site. This witness also deposed that in his presence it was not recited in Ex. A-1 at its end about the delivery of possession of the site. That recital was not there at the time when he executed Ex. A-1 and possession of the site was never delivered to the plaintiff or PW-1 and still it continues to be with them. This witness also deposed that in spite of repeated demands the plaintiff did not come forward to have the sale deed and he was not present when Ex. A-7 was executed by cousins. It was further deposed that PW-1 knows that DW-3's father got sisters, defendants 4 to 6. This witness also deposed that the minors will not be benefited if the schedule site is sold and the rates of sites at Kakinada are on the rise and PW-1 resold the site covered by Ex. A-7. This witness deposed that they are not liable to execute any sale deed and also they are not liable to refund the advance amount. This witness was cross-examined at length. This witness deposed in relation to the partition and also deposed about the inclusion in the master plan and making attempts to get the same denotified. This witness also deposed that Ex. B-6 shows that they made representation on 10-8-1982 for permission to construct houses. They did not submit any building plan along with representation and subsequent to the representation dated 10-8-1982 he visited the office of the Director of Town Planning and he gave reply Ex. B-6 rejecting his representation. Again on 15-3-1983 he made representation to the Director of Town Planning and Municipal Administration and the Director of Town Planning wanted resolution by Municipality. The Municipal Council sent its resolution on 24-3-1983. The dereservation proceedings is Ex. B-9 dated 23-4-1984. Until April 1984 for nearly one year his representation was pending with the Director of Town Planning. The suit agreement was entered into on 4-12-1984 and within two months from the date of agreement the proceedings Ex. B-9 had been issued. This witness DW-3 also was cross-examined about the persons who were holding the respective offices at the relevant point of time. This witness specifically deposed that it is not true that they approached PW-1 and represented to him that in spite of their attempts denotification could not be issued and further requested PW-1 to purchase the site and get the same denotified. DW-3 also deposed that it is not true that in 1984 Swamy Ranganadananda of Rama-krishna Math and Mr. Venkataramana Reddi together came to Kakinada and having come to know that Mr. Venaktaramana Reddi stayed with PW-1, PW-1 had acquaintance with Venkataramana Reddi he requested PW-1 to obtain the suit agreement and to get the site denotified. DW-3 also deposed that he did not verify the financial capacity of PW-1 or his wife to purchase the schedule site and he does not know the contents of Ex. A-7. This witness no doubt deposed that he does not remember about the recital in the suit agreement that the minors share of sale proceeds to be deposited or immovable property security to be furnished in respect thereof. This witness also deposed that he is having immovable properties other than this suit site. Several questions were put relating to the denotification and also in relation to Ex. B-l and Ex. B-9 and the aspect of delivery of possession. Several further details also had been elicited. This witness also deposed that since there was no reference in the suit agreement about defendants 4 to 6 they intended to execute sale deed also without any reference to defendants 4 to 6. This witness further deposed that it is not true that because defendants 4 to 6 were at a far off place by the date of suit agreement he promised the plaintiff and PW-1 that they will convince them and get the sale deed executed by them also. This witness also deposed that at the time of the suit agreement they informed PW-1 about defendants 4 to 6. Several other suggestions also had been denied.
18. On appreciation of the evidence available on record the clear picture which emerges is that PW-1 entered into this transaction in the name of his wife by taking Ex. A-1 when the situation was that the property already had been earmarked for a particular purpose in the master plan. No doubt there are certain rival contentions between both the parties one asserting that the denotification was obtained because of the efforts of PW-1 and on the contrary DW-3 asserting in a different way and DW-3 and DW-1 deposing about this aspect in detail. Be that as it may, the fact remains that even after the denotification was made for sufficiently a long lapse of time even till the fag end for reasons best known the parties had not further proceeded and all of a sudden Exs. B-1 and B-2 the exchange of notices came into being. No doubt there is some evidence available on record that efforts were being made and in fact the plaintiff was not ready and willing to perform her part of the contract. Though the affluence and the financial capacity of the wife of PW-1 also is in question except the evidence of PW-1, no other evidence had been placed. Apart from this aspect of the matter, the respective parties are throwing blame on one another, one contending that because of the non-compliance of the condition relating to the approval there was delay and on the contrary the stand taken by the defendants to the effect that after dereservation there was no impediment and from the said time onwards they have been demanding the plaintiff to take the sale deed. On a careful scrutiny of the conduct of the parties, for reasons best known, till Ex. B-2 the alleged clarification had not been thought of and at the fag end under the guise of a clarification certain allegations had been made. There is evidence of DW-1 that he was being informed even about the negotiations by the 8th defendant and while he was at Vizag he requested PW-1 to get the sale deed but for reasons best known nothing transpired in between. No doubt PW-1 deposed about Ex. A-2, office copy of notice dated 5-1-1987 and also Ex. A-3, the postal acknowledgments, Ex. B-1 is dated 20-1-1987 and Ex. B-2 is dated 21-2-1987. Be that as it may, the correspondence appears to be within a short span of time at the fag end. It is within the knowledge of the plaintiff or PW-1 relating to the dereservation and even if the stand taken by PW-1 to be believed that he was the person who got it denotified then it was within his knowledge. For reasons best known there is sufficient lapse of time, no doubt each throwing blame on another. Apart from this aspect of the matter, there is lot of controversy relating to the introduction of the recital of delivery of possession. It is pertinent to note that when Ex. A-1 was entered into for sufficiently a heavy amount it is stated on receipt of a paltry amount of Rs. 2500/- possession had been delivered. It should be either for the reason that already the same was notified and being afraid of that the same cannot be dereserved or in the alternative on the assurance made by PW-1 to get the same dereserved. Except in such cases, this Court is of the considered opinion that normally when a small portion of the total sale consideration had been made as payment, it is just against to the normal human conduct to effect delivery of possession. It is true the evidence of PW-2 is available on record. PW-2, the scribe of both Exs. A-1 and A-7 deposed about what had been agreed between the parties and also specifically deposed that it is not true to say that the clause with regard to delivery of possession to the plaintiff was interpolated subsequently and it was not there when Ex. A-l was scribed. It is no doubt pertinent to note that in Ex. A-7 also there is a similar clause relating to the delivery of possession. This witness was cross-examined at length. In the light of the evidence of PW-1 and the admissions made and also the evidence of DW-1 and DW-3, it is doubtful whether possession had been delivered at all. PW-1 himself deposed about certain encroachments and also deposed otherwise too. Even in Ex. B-2 it was referred to that the plaintiffs husband came to Kakinada to request the defendants to execute the document but he found that some labourers put up their huts and when he enquired about this they said that some encroachments were already removed and others would vacate shortly and that they are taking steps to make them vacate. The recital relating to delivery of possession on a careful reading of Ex. A-1 would appear to have been incorporated in the normal course by the scribe though the width of the prior lines thereof appear to be a bit wider when compared to these lines. Strong reliance was placed on a similar recital made in Ex. A-7 and also the evidence of PW-2. In the light of the same, this Court is of the considered opinion that the recital relating to the delivery of possession could have been introduced only in view of the compelling circumstances in which the defendants were placed at the relevant point of time inasmuch as the same already had been earmarked for a particular purpose. But on appreciation of the evidence this Court is well satisfied that in fact no possession had been delivered in pursuance of the said recital and the evidence of PW-1, DW-1 and DW-3 would clearly reflect the same. The conduct of the parties and the admissions made also would establish this aspect inclusive of the stand taken in Ex. B-2. Thus, on appreciation of the conduct of the respective parties and also on a careful scrutiny of the evidence available on record, this Court is of the considered opinion that the plaintiff intends to have undue advantage of the situation in which the defendants were placed at the relevant point of time in relation to the plaint schedule property and hence the relief being an equitable and discretionary relief and the discretion to be exercised judiciously, this Court is of the considered opinion that the plaintiff cannot be permitted to take unfair advantage over the defendants in the facts and circumstances referred to supra.
19. Point No. 2 : Submissions were made that even if defendants 4 to 6 and 24th defendant, non-parties to Ex. A-1, are not bound by the agreement of sale Ex. A-1, at least to the respective shares of the other sharers the suit can be decreed especially in view of the fact that the respective natural fathers representing the minors had entered into Ex. A-1 for legal necessity of the family and in view of the fact that they represent the major sharers and the non-parties to the agreement are only negligible sharers or minor sharers. In Hindu Law and Usage by Mayne, 14th Edition, at page 747, on Legal necessity it was stated:
Necessity is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper. On the whole it would be seen that a managing member has authority to do all acts which are clearly reasonable and proper for the realization, protection or benefit of the joint estate and for the protection and support of all the members of the joint family as well as what is required for indispensable acts of duty. The difficulty is not so much one of principle, as of its application to the varying nature of circumstances as they present themselves to different minds. It is perfectly clear that the preservation of the estate for extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation are circumstances which would justify an alienation, whether they are regarded from the point of view of legal necessity or benefit to the estate.
Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with powers of natural guardian. In Sunil Kumar v. Ram Prakash : [1988]2SCR623 , while dealing with alienation by father or karta of joint family Jagannadha Shetty, J. in concurring Judgment observed at para-26:
I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father -- karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right had interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the karta from alienating the coparcenery property.
A Full Bench of Madras High Court in Lingayya v. Punnayya AIR 1942 Mad 183, observed:
When a father sells family property without the needs of the family requiring the transaction to be entered into he becomes liable to return to the vendee a proportionate part of the purchase consideration should the other coparceners Insist, as they have the right to do, on the sale being set aside so far as they are concerned. On this event happening the vendee can compel the father to make the refund. The position then is that until the transaction is set aside at the instance of one or more of the other coparceners the father's liability is contingent, but when the event has happened the liability becomes a present one. The basis of the pious obligation rule is to the benefit which will accrue to the soul of the father by the discharge of his earthly obligations. This being the case it is difficult to see what difference the nature of the father's liability in the law can make, provided that it is a liability which the law recognizes and is prepared to enforce in terms of money. When an unlawful sale of family property is set aside during the father's lifetime the vendee has an enforceable claim against the father for the return of a proportionate part of the purchase consideration and a liability of this nature must come within the rule, if it is to be applied in accordance with the wording of the texts and the underlying idea. If the transaction is set aside after his death the vendee has a claim against his estate and the situation is the same. The redemption of the father cannot depend upon the state of mind of the son who pays the debt but on the fact of its discharge whatever the reason behind.
In Vanimisatti Anil Kumar v. Jayavarapu Krishna Murty : AIR1995AP105 , it was held that in the A.P. Amendment to Hindu Succession Act came into force during the pendency of the suit for specific performance, the rights of daughters of vendor getting share in suit property according to amendment would depend upon the result of the suit and their right is subject to the agreement of sale. It was also held that the karta selling the property for migrating to a different place for better living is for legal necessity. In Muniyappa v. Ramaiah : AIR1996Kant321 , while dealing with the aspect of right of the manager of the joint family to make alienation of the joint family property it was held (Para 12 of AIR):
The Manager of a joint Hindu family is entitled to alienate the joint family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of the other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one co-parcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition.
In Punyarnurtula Salyanarayana Krishnamraju v. Satyavolu Apparao and Anr. 1959 (1) An WR 367, while dealing with the question whether alienation of a particular item of property made by the widow in favour of a third party under a sale deed is a valid transaction supported by legal necessity it was held that it is not proved that the widow had executed the sale deed for the purpose of discharging the debt due on promissory note for expenses incurred in connection with the pilgrimage for attaining of the spiritual salvation of her deceased husband and for her spiritual salvation happiness or for discharging debt due on another promissory note borrowed for expenses in connection with the Laksha Vattula Vratam performed by her for attainment of spiritual salvation. In Kalivarapu Kamayya v. Adapaka Appalanaidu and Ors. 1975 (2) APLJ 34, while dealing with the question whether an agreement of sale of joint family properties by father for discharge of his antecedent debts can be enforced against minors even though legal necessity and benefit to the minors had not been established, held:
In the case of agreement of sale, the possession of the property does not pass to the purchaser. The purchaser does not get any right or interest in the schedule property by virtue of that contract. Moreover the right of a father to sell the joint family properties, including the shares of the sons, for the discharge of his antecedent debts contracted for his own personal benefit, which are not tainted with immorality or illegality, is a special privilege conferred upon the father under Hindu Law, due to his position as father. It is left to his entire discretion whether he, would exercise that right or not. If he fails or refuses to exercise that right, it is not open to any other person or even to the court to exercise that right on his behalf. He cannot also be compelled to exercise that right on his behalf. He cannot also be compelled to exercise that power.
In the case of an agreement of sale, where specific performance is sought for, where the father filed a written statement and contested the claim of the plaintiff on various grounds, including the ground that it is not for the benefit of the minor sons and that the alienation was not for the legal necessity, it would be opposed to the principles of Hindu Law for the court to enforce specific performance by such an unwilling vendor in respect of such properties, merely to protect the rights of the alienee.
In Mohamed Asgar Mohamed Mazhar and Anr. v. Arvind Raghunath Sawant and Anr. 2001 (5) ALD 30 (SC) while dealing with an agreement of sale of the property belonging to Hindu Undivided Family where the minor members of the family are not parties to the agreement and legal necessity for the sale had not been established, it was held that the Courts below are justified in refusing the relief of specific performance. In K.S. Vidyanandam and Ors. v. Vairavan : AIR1997SC1751 it was held that it was not necessary that every suit for specific performance to be decreed provided it is within the period of limitation notwithstanding the time limits stipulated in the agreement and the Court may have to look into the relevant circumstances into consideration, the time limits specified in the agreement and determine whether this discretion to grant specific relief would be existing or not and on facts it was held that the appellant's story of repeatedly asking defendants to get the tenant vacated is to be rejected and that rise in prices of Madurai property induced the appellant to wake up after two and half years and demand specific performance and it was a case of total inaction for two and half years and it is inequitable to give the relief of specific performance. The Counsel representing the plaintiff while making elaborate submissions no doubt made an attempt to convince the Court that in the facts and circumstances of the case, the suit can be decreed so far as Ex. A-1 would relate to the respective shares of the parties to Ex. A-1. The 24th defendant was impleaded as a party and there is no specific order saving limitation and hence it is needless to say that the relief as against such a party cannot be sustained, not only that this party is a non-party to Ex. A-1, but also on the ground of limitation. Apart from this aspect of the matter, the contention of the ratification or implied ratification had been specifically negatived by this Court and hence it is needless to say that the sisters defendants 4 to 6 are not bound by the agreement of sale Ex. A-1. Strong reliance was placed on Kartar Singh v. Harjinder Singh and Ors. : AIR1990SC854 wherein an agreement to sell the property was entered into by a joint holder both on his own behalf as well as on behalf of his sister holding equal share and where the brother agreed to sell the whole of his share and also that of his sister but his sister refused to sell it was held that the decree for specific performance in respect of half share to be granted. The Apex Court also held that the difficulties in granting a decree by partitioning the property or where the property was scattered at different places, cannot be taken as legal difficulties and when the joint holders are having half share in the property there is no difficulty in apportionment of consideration also. On the strength of this principle, submissions in elaboration had been made in this regard. On facts the said decision is distinguishable. Here is a case where several parties entered into Ex. A-1 and several of them were minors said to be represented by the natural fathers. Except some recital in Ex. A-1, reference to certain debts and except the formal and casual evidence of PW-1 on the aspect of legal necessity no serious attempt had been made on the part of the plaintiff to establish the legal necessity for the purpose of entering into Ex. A-1 so as to bind the other minors too. There cannot be any doubt or controversy that subject to certain limitations the power of alienation can be exercised by a natural father. Clear evidence on both DW-1 and DW-3 is available and specific stand had been taken that there was absolutely no necessity to enter into this transaction for the purpose of education or maintenance of minors. Obviously, there was no necessity, much less, legal necessity, and it appears from the facts that PW 1 in the light of the situation in which the property was placed at the relevant point of time intended to take advantage and having entered into a transaction Ex. A-7, he thought of entering into this transaction also with these defendants. This Court cannot arrive at any other conclusion in the light of the peculiar facts and circumstances that the plaintiff was unable to establish the legal necessity on the part of the natural fathers to enter into this transaction on behalf of the minors so as to bind the minors also. The mere casual recital is not sufficient. Some more evidence is needed. As already referred to supra, no attempt had been made to let in any convincing or acceptable evidence in this direction. Hence, this Court is of the considered opinion that the relief of specific performance in relation to the respective snares also cannot be granted in view of the fact that the relief is a discretionary relief and also in view of the fact that absolutely there is no evidence in relation to the legal necessity so as to bind the minors shown in Ex. A-1 at the relevant point of time who had attained majority subsequent thereto and had elected to dispute Ex. A-1 transaction.
20. Point No. 3 : In the peculiar facts and circumstances of the case and also in the light of the findings recorded above and in view of the clear admissions made relating to the payment of Rs. 2500/- and the receipt of the same, the plaintiff is entitled to the alternative relief of refund of Rs. 2500/- with interest (c) 12% from the date of payment till the date of institution of the suit and 5% thereafter till realization and a charge to be created over the plaint schedule property so far as it relates to the shares of the relevant major sharers who were majors at the relevant point of time and parties to Ex. A-1.
21. Point No. 4 : This Court is of the considered opinion that in the facts and circumstances except this relief the plaintiff is not entitled to any other relief whatsoever. Accordingly the suit is decreed to the extent indicated above granting the alternative relief of refund. The Appeal is allowed to the extent indicated above. Inasmuch as the alternative relief of refund is being granted, the parties to bear their own costs.