Kota Sivaram Prasad. Vs. Nagandla Veera Brahmam and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/926320
CourtAndhra Pradesh High Court
Decided OnDec-07-2011
Case NumberSecond Appeal No.1435 of 2007
JudgeL.NARASIMHA REDDY, J.
ActsImitation Act - Section 3, Article 54.
AppellantKota Sivaram Prasad
RespondentNagandla Veera Brahmam and ors
Advocates:G.Vasantha Rayudu, Adv.
Excerpt:
imitation act - section 3 - the 1st respondent filed o.s.no.108 of 2000 in the court of junior civil judge, parchur against the appellant and respondents 2 to 8 for the relief of specific performance of an agreement of sale, dated 31.3.1984. the appellant and the 3rd respondent filed a written statement opposing the suit. through judgment, dated 24.11.2006, the trial court dismissed the suit. the suit was dismissed. the agreement of sale pleaded by the 1st respondent is dated 31.03.1984. it is the specific case of the 1st respondent that he demanded venkateswarlu to execute the sale deed during his lifetime. however no suit was filed as long as venkateswarlu was alive. the 1st respondent took six years from he date of death of venkateswarlu to file the suit, by placing reliance upon a notice dated 29.06.2000 said to have been issued to the legal representatives of venkateswarlu.l.narasimha reddy, j.judgment:1. the 1st respondent filed o.s.no.108 of 2000 in the court of junior civil judge, parchur against the appellant and respondents 2 to 8 for the relief of specific performance of an agreement of sale, dated 31.3.1984. he pleaded that the suit schedule property of ac.0.03 cents owned by sri kota venkatarlu, father of the appellant and respondents 2 and 3, was given on lease in the year 1978 for establishing a work shop and that on 31.03.1984, venkateswarlu executed an agreement of sale for sale of the property for a consideration of rs.5,000/-. on the same day, the entire consideration is said to have been paid. it was alleged that demand was made against venkateswarlu for execution of sale deed but he did not execute the same till he died on 31.01.1994. thereafter, a notice is said to have been issued to the appellant and respondents 2 and 3 on 29.06.2000 calling upon them to execute the sale deed and since they did not take any steps, the suit was filed. he expressed his readiness and willingness to perform his part of the contract.2. the appellant and the 3rd respondent filed a written statement opposing the suit. it was stated that the property was owned by their mother by name chandramathi, who purchased it under sale deed 09.09.1965 and after her death, the property devolved upon her three sons, two daughters and husband and each one got one-sixth share. they flatly denied the averment that venkateswarlu executed the agreement of sale. according to them, the 1st respondent committed default in payment of rents and when repeated demands were made, he fabricated the agreement of sale with an oblique motive.3. respondents 4 to 8 herein, who figured as defendants 4 to 8, were added on the allegation that they obtained orders of attachment against the suit schedule property. they were set ex parte by the trial court.4. through judgment, dated 24.11.2006, the trial court dismissed the suit. the 1st respondent filed a.s.no.12 of 2006 in the court of senior civil judge, parchur. the appeal was allowed on 15.11.2007. hence, this second appeal.5. heard sri g.vasantha rayudu, learned counsel for the appellant and sri k.jyothi prasad, learned counsel for the 1st respondent. the appellant made an endorsement in the grounds of appeal that respondents 2 to 8 are not necessary parties to the second appeal.6. the 1st respondent was inducted into possession of the property as a lessee. to that extent, there is no controversy. however, he pleaded that the father of the appellant executed an agreement of sale on 31.03.1984 marked as ex.a.10 and he filed the suit for specific performance of agreement of sale. two issues viz., whether the plaintiff is entitled for specific performance of as prayed for, and whether the plaintiff is entitled for permanent injunction as prayed for, were framed. on his behalf, the 1st respondent examined p.ws.1 to 4 and exs.a.1 to a.13 were filed. on behalf of the appellant, d.ws.1 to 4 were examined and ex.b.1 a sale deed, through which his mother purchased the property was filed. the suit was dismissed.7. the lower appellate court framed the following points for consideration in a.s.no.12 of 2006 filed by the 1st respondent:1. whether ex.a.10 is true, valid and binding on the legal heirs of kota venkateswarlu?2. whether the plaintiff is entitled for permanent injunction restraining the defendants from interfering with the plaintiff's possession of the plaint schedule property as prayed for?3. whether there are any grounds to set aside or modify the decree and judgment dated 24.11.2006 passed in o.s.no.108/2000 on the file of the junior civil judge's court, parchur? ultimately, the appeal was allowed.8. on hearing the learned counsel for the appellant and the learned counsel for the 1st respondent, this court is of the view that the following substantial questions of law arise for consideration:(a) whether it is not the obligation of a trial court to examine the question of limitation, under section 3 of the imitation act, when a suit for specific performance is filed beyond 3 years from the date of agreement of sale; and(b) whether the husband of a woman can enter into an agreement of sale in respect of property held by the woman without reference to the other legal heirs.9. the first question pertains to the one of limitation. the agreement of sale pleaded by the 1st respondent is dated 31.03.1984. the person who is said to have executed ex.a.10 died on 30.01.1994 i.e. about ten years after the date of agreement. the 1st respondent is said to have paid the entire consideration. in case, vekateswarlu had received the entire consideration, there should not have been any difficulty for him to conclude the transaction. it is the specific case of the 1st respondent that he demanded venkateswarlu to execute the sale deed during his lifetime. however no suit was filed as long as venkateswarlu was alive.10. section 3 of the limitation act places obligation on the courts to examine whether the suit was filed within the period of limitation stipulated under the act. if the averments in the plaint indicate that the suit was filed beyond the stipulated period of limitation, the plaint is liable to be rejected.11. the starting point of limitation for filing suits for specific performance is the date, on which the party, who is under obligation to perform his part, had refused to do so, under article 54 of the schedule to the act. in the absence of any averment in the contract, such demand is required to be made before expiry of three years from the date of agreement. it is only when a stipulation exists to the effect that the transaction can be concluded at a later point of time, that a different approach becomes possible.12. even if the 1st respondent can be said to have, indeed, demanded venkateswarlu to execute sale deed after expiry of three years, suit ought to have been filed within three years from the date of inaction on the part of venkateswarlu. it is not necessary that refusal must be specific or in any particular form. if a demand was made and nothing positive is forthcoming, refusal can be implied.13. as observed earlier, venkateswarlu died on 30.01.1994. then, assuming that the demand was made just before the death of the said individual, the suit ought to have been filed within three years after his death. however, that was not done. the 1st respondent took six years from he date of death of venkateswarlu to file the suit, by placing reliance upon a notice dated 29.06.2000 said to have been issued to the legal representatives of venkateswarlu. the trial curt dismissed the suit by taking these aspects into account. however, the lower appellate court totally disregarded such important aspects. hence, this question is answered in favour of the appellant.14. assuming that the suit was presented within the period of limitation, it needs to be seen as to whether late venkateswarlu had the capacity to enter into agreement. it is a matter of record that the property was purchased by the wife of venkateswarlu, through ex.b.1. she pre-deceased her husband. on her death, the property devolved in equal shares upon her husband-venkateswarlu, three sons and two daughters. therefore, he was not at all entitled to enter into agreement with the 1st respondent. the second question is also answered in favour of the appellant.15. there is any amount of uncertainty as to the facts pleaded by the 1st respondent. in case, he has paid the entire consideration, there was no obligation on his part to pay the rent from 31.03.1984. however, in his cross- examination, he stated that he paid the rents for the premises till the death of venkateswarlu, which occurred in the year 1994. the equitable relief of specific performance cannot be granted in favour of the person, who is not consistent in his version.16. in the result, the second appeal is allowed and the decree passed by the lower appellate court is set aside. there shall be no order as to costs.
Judgment:

L.NARASIMHA REDDY, J.

JUDGMENT:

1. The 1st respondent filed O.S.No.108 of 2000 in the Court of Junior Civil Judge, Parchur against the appellant and respondents 2 to 8 for the relief of specific performance of an agreement of sale, dated 31.3.1984. He pleaded that the suit schedule property of Ac.0.03 cents owned by Sri Kota Venkatarlu, father of the appellant and respondents 2 and 3, was given on lease in the year 1978 for establishing a work shop and that on 31.03.1984, Venkateswarlu executed an agreement of sale for sale of the property for a consideration of Rs.5,000/-. On the same day, the entire consideration is said to have been paid. It was alleged that demand was made against Venkateswarlu for execution of sale deed but he did not execute the same till he died on 31.01.1994. Thereafter, a notice is said to have been issued to the appellant and respondents 2 and 3 on 29.06.2000 calling upon them to execute the sale deed and since they did not take any steps, the suit was filed. He expressed his readiness and willingness to perform his part of the contract.

2. The appellant and the 3rd respondent filed a written statement opposing the suit. It was stated that the property was owned by their mother by name Chandramathi, who purchased it under sale deed 09.09.1965 and after her death, the property devolved upon her three sons, two daughters and husband and each one got one-sixth share. They flatly denied the averment that Venkateswarlu executed the agreement of sale. According to them, the 1st respondent committed default in payment of rents and when repeated demands were made, he fabricated the agreement of sale with an oblique motive.

3. Respondents 4 to 8 herein, who figured as defendants 4 to 8, were added on the allegation that they obtained orders of attachment against the suit schedule property. They were set ex parte by the trial Court.

4. Through judgment, dated 24.11.2006, the trial Court dismissed the suit. The 1st respondent filed A.S.No.12 of 2006 in the Court of Senior Civil Judge, Parchur. The appeal was allowed on 15.11.2007. Hence, this second appeal.

5. Heard Sri G.Vasantha Rayudu, learned counsel for the appellant and Sri K.Jyothi Prasad, learned counsel for the 1st respondent. The appellant made an endorsement in the grounds of appeal that respondents 2 to 8 are not necessary parties to the second appeal.

6. The 1st respondent was inducted into possession of the property as a lessee. To that extent, there is no controversy. However, he pleaded that the father of the appellant executed an agreement of sale on 31.03.1984 marked as Ex.A.10 and he filed the suit for specific performance of agreement of sale. Two issues viz., whether the plaintiff is entitled for specific performance of as prayed for, and whether the plaintiff is entitled for permanent injunction as prayed for, were framed. On his behalf, the 1st respondent examined P.Ws.1 to 4 and Exs.A.1 to A.13 were filed. On behalf of the appellant, D.Ws.1 to 4 were examined and Ex.B.1 a sale deed, through which his mother purchased the property was filed. The suit was dismissed.

7. The lower appellate Court framed the following points for consideration in A.S.No.12 of 2006 filed by the 1st respondent:

1. Whether Ex.A.10 is true, valid and binding on the legal heirs of Kota Venkateswarlu?

2. Whether the plaintiff is entitled for permanent injunction restraining the defendants from interfering with the plaintiff's possession of the plaint schedule property as prayed for?

3. Whether there are any grounds to set aside or modify the decree and judgment dated 24.11.2006 passed in O.S.No.108/2000 on the file of the Junior Civil Judge's Court, Parchur? Ultimately, the appeal was allowed.

8. On hearing the learned counsel for the appellant and the learned counsel for the 1st respondent, this Court is of the view that the following substantial questions of law arise for consideration:

(a) Whether it is not the obligation of a trial Court to examine the question of limitation, under Section 3 of the Imitation Act, when a suit for specific performance is filed beyond 3 years from the date of agreement of sale; and

(b) Whether the husband of a woman can enter into an agreement of sale in respect of property held by the woman without reference to the other legal heirs.

9. The first question pertains to the one of limitation. The agreement of sale pleaded by the 1st respondent is dated 31.03.1984. The person who is said to have executed Ex.A.10 died on 30.01.1994 i.e. about ten years after the date of agreement. The 1st respondent is said to have paid the entire consideration. In case, Vekateswarlu had received the entire consideration, there should not have been any difficulty for him to conclude the transaction. It is the specific case of the 1st respondent that he demanded Venkateswarlu to execute the sale deed during his lifetime. However no suit was filed as long as Venkateswarlu was alive.

10. Section 3 of the Limitation Act places obligation on the Courts to examine whether the suit was filed within the period of limitation stipulated under the Act. If the averments in the plaint indicate that the suit was filed beyond the stipulated period of limitation, the plaint is liable to be rejected.

11. The starting point of limitation for filing suits for specific performance is the date, on which the party, who is under obligation to perform his part, had refused to do so, under Article 54 of the Schedule to the Act. In the absence of any averment in the contract, such demand is required to be made before expiry of three years from the date of agreement. It is only when a stipulation exists to the effect that the transaction can be concluded at a later point of time, that a different approach becomes possible.

12. Even if the 1st respondent can be said to have, indeed, demanded Venkateswarlu to execute sale deed after expiry of three years, suit ought to have been filed within three years from the date of inaction on the part of Venkateswarlu. It is not necessary that refusal must be specific or in any particular form. If a demand was made and nothing positive is forthcoming, refusal can be implied.

13. As observed earlier, Venkateswarlu died on 30.01.1994. Then, assuming that the demand was made just before the death of the said individual, the suit ought to have been filed within three years after his death. However, that was not done. The 1st respondent took six years from he date of death of Venkateswarlu to file the suit, by placing reliance upon a notice dated 29.06.2000 said to have been issued to the legal representatives of Venkateswarlu. The trial Curt dismissed the suit by taking these aspects into account. However, the lower appellate Court totally disregarded such important aspects. Hence, this question is answered in favour of the appellant.

14. Assuming that the suit was presented within the period of limitation, it needs to be seen as to whether late Venkateswarlu had the capacity to enter into agreement. It is a matter of record that the property was purchased by the wife of Venkateswarlu, through Ex.B.1. She pre-deceased her husband. On her death, the property devolved in equal shares upon her husband-Venkateswarlu, three sons and two daughters. Therefore, he was not at all entitled to enter into agreement with the 1st respondent. The second question is also answered in favour of the appellant.

15. There is any amount of uncertainty as to the facts pleaded by the 1st respondent. In case, he has paid the entire consideration, there was no obligation on his part to pay the rent from 31.03.1984. However, in his cross- examination, he stated that he paid the rents for the premises till the death of Venkateswarlu, which occurred in the year 1994. The equitable relief of specific performance cannot be granted in favour of the person, who is not consistent in his version.

16. In the result, the second appeal is allowed and the decree passed by the lower appellate Court is set aside. There shall be no order as to costs.