O.S.No.465/2009, dt.05.01.2018.

FAIR COPY
1

IN THE COURT OF THE VII ADDL.SENIOR CIVIL JUDGE:

VIJAYAWADA.

PRESENT: SRI K.P.BALAJI,

VII ADDL.SENIOR CIVIL JUDGE, VIJAYAWADA

FRIDAY, THIS THE 5th DAY OF JANUARY, 2018.

O.S.NO.465/2009
Between:
Babburi Yadunandana Prasad, S/o.Tirupathi, Hindu, aged 34 years,
Properties & Business, R/o.D.No.75-10-4/1, Bhavanipuram,
Vijayawada-12.
… Plaintif
And
1. Babburi Venkata Swamy, S/o.late Lakshmaiah, Hindu, aged 55
years, Properties, R/o.Narravada, Dattuluru Mandal, Nellore
District.
2. Babburi Indiramma, W/o.Venkata Swamy, Hindu, R/o.Narawada
village, Dattuluru Mandal, Nellore District.
3. Babburi Poornachandra Rao, S/o.Venkata Swamy, Hindu,
R/o.Narawada village, Dattuluru Mandal, Nellore District.
(Defendants 2 and 3 were added as per orders in I.A.No.16/2017,
dt. 10.07.2017)
… Defendants

This suit is coming on 20.12.2017 before me in the presence

of Sri Y.Srinivasa Reddy and Sri U.R.P.Srinivas, Advocates for the
plaintiff and of Sri A.Syam Sundar Reddy, Advocate for defendants
and the matter having stood over till this day for consideration,
this court delivered the following:

JUDGMENT

1. Suit for specific performance and for costs.

2. Defendants 2 and 3 were brought on record as per order in

I.A.No. 16 of 2017 dt. 10.7.2017.

3. The averments in the amended plaint are as follows: The

defendant is the absolute owner of vacant land of an extent of

347.4 sq. yards situate in R.S.No. 96 of Bhavanipuram bearing old

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
2

D.No. 75-10-3A New D.No. 75-10-7, New Assessment No. 95610 of

Bhavanipuram, Vijayawada morefully described in the plaint

schedule. The defendant entered into a possessory agreement of

sale on 20.1.2004 in respect of the plaint schedule property for a

total consideration of Rs. 2,60,550/- and received a sum of Rs.

2,40,500/- from him towards advance sale consideration. On the

same day he executed a possessory agreement of sale in his

favour. According to the terms of the agreement the defendant

agreed to execute a registered sale deed in his favour on receiving

the balance sale consideration. On the date of agreement itself in

his favour the defendant also delivered possession of the plaint

schedule property and also the Photostat copies of the documents

of title to him. The factum of delivery of possession was clearly

incorporated in the agreement of sale. Since the date of

agreement he has been in possession and enjoyment of the same

as purchaser under the agreement of sale without any interruption

whatsoever. He has always been ready and willing to perform his

part of the contract. He personally requested the defendant to

perform his part of the contract and execute a regular registered

sale deed after receiving the balance of sale consideration. But he

went on postponing on some pretext or the other. Finally, on

2.2.2009 he got issued a lawyer’s notice calling upon the

defendant to execute a registered sale deed in his favour after

receiving the balance sale consideration. Instead of complying

with the demand the defendant’s wife got issued a reply on

9.2.2009 with all false allegations. Instead of complying with the

demand, the defendant along with his henchmen hatched a plot

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
3

and in furtherance of the same on 28.2.2009 the defendant along

with his men tried to occupy the plaint schedule property with a

malafide intention to deprive his legitimate interest in the plaint

schedule property. The highhanded dispossession was intervened

by the plaintiff and the elders in the vicinity. While leaving the

place the defendant and his men openly proclaimed that they

would any how occupy the plaint schedule property. Being in

lawful possession of the plaint schedule property under the suit

agreement of sale, he is entitled to retain possession. It is learnt

that the defendant with a malafide intention to defeat his right

brought into existence a spurious gift deed dt. 11.3.2008 under

document No. 1333/2008 in favour of his wife and son,

B.Indiramma and B.Purnachandra Rao. The contents of the said

gift deed are not true and correct. The alleged gift deed was

executed by the 1st defendant in favour of the defendants 2 and 3

with a malafide intention to defeat his rights in the plaint schedule

property. Hence the suit.

4. The 1st defendant filed written statement contending as

follows: All the allegations made in the plaint except those that are

specifically admitted herein to be true are denied as false and they

are invented for the purpose of the suit. He is the absolute owner

and possessor of the plaint schedule property and as on the date

he is in peaceful possession and enjoyment of the same. The

plaintiff who happened to be his close relative by taking advantage

of his dumbness hatched up a plan to grab the plaint schedule

property. Without his knowledge and permission he collected

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
4

documents pertaining to suit property and other properties from

court which were filed and marked in O.S.No. 1084 of 1993 on the

file of I Addl. Junior Civil Judge, Vijayawada. He came to know

about the fraudulent acts committed by the plaintiff and others

only after receiving notice got issued by the plaintiff on 2.2.2009.

Immediately after receiving the said notice his wife got issued a

suitable reply. He registered a gift deed in favour of his wife and

son with regard to the plaint schedule property. He never entered

into any agreement of sale in favour of the plaintiff with regard to

the plaint schedule property. If really he had executed any such

agreement, the plaintiff would have initiated steps much earlier

and would not have taken steps after a lapse of 5 years. The suit

is not maintainable on the ground of non inclusive of necessary

parties and also barred by limitation. The suit is, therefore, liable

to be dismissed with costs.

5. Defendants 2 and 3 filed written statement contending as

follows: All the allegations made in the plaint except those that are

specifically admitted herein to be true are denied as false and they

are invented for the purpose of the suit. The 3 rd defendant was

appointed as guardian for the person and properties of the 1 st

defendant as per order in GOP. No. 188 of 2011 dt. 31.1.2012. The

1st defendant is a dead and dumb person with 100% disability since

his birth as a result of which he became mentally retarded. The 1 st

defendant has got only brother who is elder to him by name

B.Tirupataiah. As the 1st defendant has become mentally retarded

his welfare had been looked after by his parents B.Lakshmaiah and
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
5

Lakshmamama. After the demise of his father the elders

performed his marriage with the 2 nd defendant. Originally the

family of B.Lakshmiah including the first defendant and his brother

Tirupataiah hailed from Vulavaripalem h/o Narravada village of

Nellore District and they are agriculturists. The 2 nd defendant also

hails from the same village. Since the date of marriage the 2 nd

defendant has been looking after the personal welfare of the first

defendant and her brother, M.Thimaiah had been looking after the

properties welfare of the 1st defendant till the 3rd defendant was

duly appointed as guardian to the person and properties of the first

defendant. The plaint schedule property and other property in an

extent of Ac. 2.13 cents in R.S.Nos. 418/3, 418/4 and 418/5 of

Gollapudi village belonged to one B.Venkataratna Prasad s/o

Sriramulu. The said Sriramulu is the paternal uncle of the 1 st

defendant. As such, the said Venkataratna Prasad is the cousin

brother of the 1st defendant and his brother Tirupathiah. When the

said Venkataratna Prasad offered to sell the said large extent of Ac.

2.13 cents, the brother of the first defendant purchased the

property under possessory agreement of sale dt. 2.6.1983. Since

then he had been in possession and enjoyment of the same. When

Tirupatiah offered to sell the said property, the guardian of

properties of 1st defendant M.Thimmaiah agreed to purchase an

extent of Ac. 0.50 cents with the amount of the 1 st defendant in his

name and agreed to purchase another extent of 50 cents with hi

sown amount in his name i.e., Thimmaiah’s name. Then Mekapata

Venkata Subbamma who is the daughter of the 1 st defendant’s

sister came forward to purchase an extent of 64 cents and Pulivarti

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
6

Venkateswarlu also came forward to purchase 50 cents. As such,

B.Tirupatiah sold the entire large extent to the above said four

persons. Meanwhile, the original vendor of B.Tirupatiah by name

Venkataratna Prasad died leaving behind his children, and wife. He

died without executing a regular sale deed in favour of Tirupatiah.

Then the legal representatives of Venkataratna Prasad executed a

registered GPA engaging B.Venkata Rao on 8.10.1987 authorising

him to execute regular sale deed in respect of the above larger

extent either in favour of B.Thirupatiah or his nominees. As

Babburi Thirupatiah sold the property as above to the above said

four persons, the registered agent of Venkataratna Prasad i.e.,

B.Venkata Rao and B.Tirupathiah jointly executed registered sale

deeds in favour of the above said persons in respect of the extent

they purchased as above under different registered sale deeds. As

such the 1st defendant obtained a registered sale deed dt. 9.3.1989

vide document No. 3677/89 registered on 5.51989 on the file of

SRO, Ibrahimpatnam for his 0.50 cents in R.S.No,. 418/5 and since

then he had been in absolute, open, continuous, and interrupted

possession of the same to the knowledge of one and all until he

gifted the same to these defendants.

6. During the life time of B.Sriramulu, he has also offered to sell

an extent of 694 sq. yards of house site situate in R.S.No. 96 of

Bhavanipuram. The plaint schedule property is part and parcel of

694 sq. yards. Then the guardian of the 1st defendant for

properties purchased the said property with the amount of the 1 st

defendant and obtained a valid registered sale deed on 27.2.1990

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
7

and since he had been in possession and enjoyment of the same

till he executed a gift deed in favour of these defendants. The

name of the 1st defendant was also mutated in the concerned

records recognizing his possession. Later when the legal

representatives of Venkataratna Prasad raised some disputes the

above said four persons including the first defendant and his

guardian M.Thimmiah filed O.S. No. 1084/1993 on the file of Junior

Civil Judge, Vijayawada wherein the guardian of the 1 st defendant

by name Thimmaiah being the 4th plaintiff therein deposed as P.W.1

and through him all the title deeds standing in the names of the

above said persons including the first defendant were marked as

exhibits. The original sale deeds standing in the name of the first

defendant were marked as Exs.A.2 and A.6 respectively. The 1 st

defendant and other members of his family are permanent

residents of Narravada village of Nellore District. As such he is the

absentee landlord and being a deaf and dumb person by birth with

100% disability and mentally retarded person, some anti social

elements kept an eye over the above referred properties.

M.Thimmaiah smelled that some anti social elements are trying to

encroach the properties with secret support and air of near and

dear of the family. By then an extent of 333 sq. yards out of 0.50

cents was sold to others and the said Thimmaiah has thought that

it was not safe to keep the above said properties in the name of

the first defendant and transferred to defendants 2 and 3 under a

registered gift deed dt. 27.5.2008. The said gift was accepted by

defendants 2 and 3. Since then they have in possession and

enjoyment of the properties covered under the gift deed, including

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
8

the plaint schedule property. Their names were also mutated in

the revenue records. Their anticipation became true. One G.Pujya

Lakshmi tried to interfere with their possession and enjoyment in

respect of 50 cents of land and the plaint schedule property. Then

they filed O.S.No. 1334 of 2008 on the file of IV Addl. Sr. Civil Judge,

Vijayawada in respect of 50 cents of land against her for

permanent injunction and another suit O.S.No. 1338 of 2008 on the

file of IV Addl. Sr. Civil Judge, Vijayawada in respect of the plaint

schedule property, abutting property totalling to 694 sq. yards, on

29.12.2008. Then the grave criminal conspiracy of the brother of

the 1st defendant, B.Tirupathiah revealed which made the entire

family to fall into shock and surprise by knowing how he conspired

with his kith and kin and fabricated agreements of sale with sole

object of knocking away the plaint schedule property and other

property. Subsequent to the registration of the gift deeds, the

brother of the first defendant fabricated three possessory

agreements of sale in the name of his kith and kin, i.e., the plaintiff

who is no other than his son, P.Venkata Seshagiri Rao and G.Pujya

Lakshmi. Initially he created illegal possessory agreement of sale

dt. 24.5.2006 alleged to have been executed by the 1 st defendant

in favour of G.Pujya Lakshmi, who is the daughter of paternal uncle

of Thirupathaiah in respect of part of 694 sq. yards covered under

O.S. No. 1338/2008 and got issued a notice dt. 13.8.2008 to the 1 st

defendant only demanding him to execute a registered sale deed.

Later he created another agreement of sale dt. 20.5.2006 in the

name of P.Venkata Seshagiri Rao in respect of 50 cents of

agricultural land and got issued a notice on 2.1.2009 and

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
9

subsequently he created another agreement of sale dt. 20.1.2004

in the name of the plaintiff in respect of the plaint schedule

property and got issued a notice on 2.2.2009 to the 1 st defendant

demanding him to execute a registered sale deed. The 2 nd

defendant got issued a reply to all the notices on 5.1.2009 to Pujya

Lakshmi, 12.1.2009 to P.Venkata Seshagiri Rao and 9.2.2009 to the

plaintiff. After receiving the reply the plaintiff filed the suit on

23.9.2009 against the first defendant only for specific performance

in respect of an extent of 694 sq. yards of house site covered

under O.S.No. 1338 of 2008. G.Pujya Lakshmi filed the suit on

29.4.2009 in respect of remaining part of an extent of 694 sq.

yards of site covered under O.S.No. 1338/2008 seeking specific

performance and P.Venkata Seshagiri Rao filed another suit in

O.S.No. 110 of 2009 dt. 27.4.2009 in respect of 50 cents covered

under O.S.No. 1334 of 2008. Later these defendants were added

as defendants 2 and 3 as per order in I.A.No. 1085 of 2016. The 2 nd

defendant got issued three reply notices bringing all the true and

real facts to the notice of the above three persons. After

completion of B.Tech., the 3rd defendant was appointed as guardian

to the person and properties of the 1st defendant as per orders in

GOP. No. 188 of 2011 dt. 31.1.2012 on the file of Prl. Dist. Judge,

Nellore. Basing on the report of the medical board and the

evidence the 3rd defendant was appointed as guardian to the

person and properties of the 1st defendant. They learnt that

B.Thirupatiah has taken return of Ex.A.2, A.6, original documents

marked in O.S.No. 1087 of 1983 when it is in appeal under A.S.No.

150 of 2000 by forging the thumb impression of the first

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
10

defendant. On coming to know about the said fact, M.Thimmaiah

complained to the II ADJ, Vijayawada on 28.10.2009 and another

complaint on 15.3.2010 to the Hon’ble Dist. Judge, Krishna District

by marking copies of the complaint to the higher authorities. By

forging the thumb impressions of the 1 st defendant the plaintiff

filed the suit. Neither the 1st defendant nor his family members

delivered the original title deeds of the plaint schedule property to

the plaintiff at any point of time. The custody of original

documents is illegal. As such the said custody cannot create any

title, interest in favour of the plaintiff or other persons. Since the

date of gift in their favour they have been in possession and

enjoyment of the plaint schedule property and other properties

covered under the gift deeds. The plaintiff never demanded them

to execute any registered sale deed. The alleged agreements of

sale in favour of plaintiff and the other two persons are created and

fabricated on white papers. All these agreements of sales are

attested and scribed by the associates of B.Tirupathaiah. The

plaintiff approached the court with unclean hands. None of the

above persons have capacity to pay the alleged consideration. No

consideration passed on to the first defendant under the

agreements of sale at any point of time. The 1 st defendant never

sold the plaint schedule property to the plaintiff under the suit

agreement of sale. The cause of action mentioned in the plaint is

not true and correct. The suit is, therefore, liable to be dismissed

with costs.
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
11

7. Based on the above pleadings, the following issues were

settled for the trial of the suit.

1. Whether the plaintiff is entitled to the relief of specific

performance of the contract as prayed for?

2. Whether the suit is barred by time?

3. Whether the gift deed executed by D1 in favour of D2 and D3

is true, valid and binding on the plaintiff?

4. To what relief?

8. On behalf of the plaintiff, P.Ws. 1 and 2 were examined and

Exs.A.1 to A.15 were marked. On behalf of the defendants, D.Ws. 1

and 2 were examined and Exs.B.1 to B.32 were marked.

9. The learned counsel for the plaintiff made the following

submissions:- The first defendant entered into a possessory

agreement of sale on 20.1.2004 in respect of the plaint schedule

property having agreed to sell the same for Rs. 2,60,550/-. He

received an advance sale consideration of Rs. 2,40,550/- and

promised to execute a registered sale deed after receiving the

balance sale consideration. Possession of the property was also

delivered to him on the same day and ever since then he has been

in possession and enjoyment of the same. The 1 st defendant also

delivered copies of the title deeds to him on the same day. Since

the date of agreement of sale in his favour, the plaintiff has been in

possession and enjoyment without any interference or interruption

from anybody. The plaintiff has always been ready and willing to

perform his part of the contract but the 1 st defendant has been

postponing on some pretext or the other even though he has been

demanding to execute the sale deed after receiving the balance

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
12

sale consideration of Rs.20,000/-. Finally, on 2.2.2009 he got

issued a lawyer’s notice to the 1st defendant calling upon him to

execute the sale deed by receiving the balance sale consideration.

To the said notice, the 2 nd defendant/wife of the first defendant got

issued a reply with all false allegations. On 28.2.2009 the first

defendant along with his men came to the plaint schedule property

and tried to interfere with his possession and occupy the plaint

schedule property. Their attempts were averted with the help of

the neighbouring land owners. The 1st defendant and his men went

away proclaiming that they will some how occupy the plaint

schedule property. With a malafide intention to defeat his rights

the 1st defendant brought into existence spurious gift deed dt.

11.3.2008 in favour of defendants 2 and 3 and it is not binding on

him. The 1st defendant has been resisting his claim by filing

written statement denying the agreement itself. Though it is

contended that the 1st defendant is a deaf and dumb person with

100% disability and that he has also become a mentally retarded

person, they failed to prove the said fact. The orders obtained in

G.O.P.No. 188/2011 on 31.1.2012 from the Hon’ble District Court,

Nellore behind the back of the plaintiff is not binding on him. The

learned counsel for the plaintiff to drive home his point that the

defendants failed to prove that the 1 st defendant is a deaf and

dumb person with 100% disability and that he has also become a

mentally retarded person would take this court through the

evidence of D.W.1 at various stages of his cross examination. He

has also took this court through the evidence of D.W.2. Merely

because the plaintiff did not file any rejoinder to the written
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
13

statement filed by the defendants 2 and 3, it will not amount to

admission of the case of the defendants. The 1 st defendant never

appeared before the court nor entered into the witness box. There

is no explanation from defendants 2 and 3 as to how the first

defendant filed the written statement when he was not competent

to issue any reply. But the execution of Spl. Power of Attorney in

favour of the 3rd defendant falsifies the case of the defendants that

the 1st defendant is a deaf and dumb person and that he is also

suffering from mental illness. The 1st defendant did not take any

specific plea of his being mentally ill and only stated in para 7 that

he is suffering from dumbness. Therefore, Sec. 12 does not

attract. The reply issued in the year 2009 is also silent about the

execution of the gift deeds in favour of defendants 2 and 3. Being

a non-party to the gift deeds he cannot seek for their cancellation.

Further the return of documents endorsement obtained D.W.2

clearly shows that the said documents were taken back by the 1 st

defendant himself. Under Sec. 40 of the Transfer of Property Act

defendants 2 and 3 being gratuitous transferees under the gift

deeds are not entitled for protection and the alleged gift deed is

not binding on the plaintiff. The plaintiff is entitled to enforce the

suit agreement of sale against defendants 2 and 3 also. When an

action is brought for specific performance, the subsequent

transferee would be a necessary party to the suit as the only

decree that is required to be passed in such a suit (for specific

performance) is against the original vendor and the subsequent

transferees are required to be directed to join in the sale which is

directed by a decree for specific performance of contract. Hence it

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
14

is not necessary for the plaintiff to claim declaration of invalidity of

transfer of property made in favour of the subsequent transferees.

The decision rendered by the Hon’ble Supreme Court is a by a

Bench of 3 Judges and hence the decision relied upon by the

learned counsel for the defendants in this regard rendered by 2

Judges, cannot be applied to the facts of the present case. Since

the first defendant did not enter into the witness box adverse

inference has to be drawn. Hence the suit may be decreed. In

support of the above contentions, reliance is placed on the

decisions in Jonnagadda Suryakantham v.

R.Sathiyyamma,1Sankaran Narayanan v. Padmanabha Iyer ,2

Tammisetti Nageswara Rao and another v. D.Radhakrishna

Murthy,3 K.B,.V.Nagabhushana Gupta v. R.Venkateswara

Rao and others,4 Lakshmi Amma Kamalamma v.Ayyappan

Kunjoonju,5Trimbak Shankar Tidke v. Nivratti Shankar

Tidke,6 Tekchand and others v. Deep Chand and others,7

Gopuram Krishna Moorthy Raju v. Yerragudi Narasimha

Raju,8 Vidyadhar v.Manikikrao,9 Smt.Saraswathamma v.

H.Sharad Shrikhande and others,10 Zarina Siddiqui

v.A.Ramalinam @ R.Amarnathan11 and Dilip Bastimal Jain v.

Baban Bhanudas Kamble and others12

1 1994(1) ALT 93
2 AIR 2004 Mad 395
3 2015(3) ALT 673
4 1996(3) ALT 100
5 AIR 2004 Ker 174
6 AIR 1985 Bom 128
7 AIR 2001 SC 1392
8 AIR 2006 AP 52
9 AIR 1999 SC 1441
10 AIR 2005 Kar 292
11 (2015) 1 SCC 705
12 AIR 2002 Bom 279
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
15

10. Per contra, the learned counsel for the defendants made the

following submissions:- The plaintiff is no other than the brother’s

son of the 1st defendant. The 1st defendant never entered into any

agreement of sale with the plaintiff nor executed any agreement

muchless the suit agreement of sale in his favour. He never

received any advance sale consideration from the plaintiff as

alleged. The 1st defendant is a deaf and dumb person with 100%

disability and on account of the said disability he has become a

mentally retarded person. Prior to his marriage, his parents used

to look after him. After the marriage the 2nd defendant used to look

after his personal fairs and her brother, Thimmaiah used to

lookafter his property affairs. After the 3 rd defendant completed his

studies he used to look after the property affairs of the first

defendant. The 3rd defendant was also appointed as guardian for

the person and properties of the 1st defendant in G.O.P.No. 118 of

2011 of the Dist. Judge, Nellore District. The brother of the 1 st

defendant, B.Thirupathaiah is behind the litigation. When the

L.Rs., of Venkataratna Prasad raised some disputes the 1 st

defendant and others filed O.S.No. 1084 of 1993 wherein the 4 th

plaintiff (D.W.2 herein) has been examined as P.W.1 and through

him all the title deeds including the title deeds of the 1 st defendant

were marked through him. The defendants are permanent

residents of Naravada. Having smelled that some anti social

elements are trying to encroach the plaint schedule property, on

the advise of D.W.2, the 1 st defendant executed a gift deed in

favour of defendants 2 and 3 on 27.5.2008 and since then they

have been in possession and enjoyment of the same. After coming

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
16

to know about the said gift deed, the father of the plaintiff, created

four agreements of sale as if they were executed by the 1 st

defendant in the names of his son, P.Venkateswarlu, Pujaya

Lakshmi and P.V. Sehsagiri Rao and got issued notices through

them. The 1st defendant got issued a suitable reply through the 2 nd

defendant. In fact, the 1st defendant never executed any

agreements of sale in favour of anybody nor received any advance

sale considerations from them. The said agreements of sale are

fabricated for the purpose of knocking away the plaint schedule

property. The defendants came to know that the father of the

plaintiff by name B.Thirupathaiah took return of the documents

belonging to the 1st defendant filed in earlier suit O.S.No. 1087 of

1993 even though appeal is pending in A.S.No. 150 of 2000 by

impersonating him. If really any such transaction had taken place,

the plaintiff would not have kept quiet for more than 5 years

without raising his little finger. The suit is also barred by limitation

as the notice itself was issued after a lapse of 5 years. A lunatic is

not a person who is continuously in a state of mind and once it had

been established that a person is a lunatic, the burden of proof is

on the party who alleges that a document he relies on as having

been executed by the alleged lunatic was executed by him during

a lucid interval. Even though the plaintiff is aware of the gift deed

executed by the 1st defendant in favour of defendants 2 and 3, he

did not ask for their cancellation and unless the said conveyance/s

are set aside, no decree for specific performance would possibly

follow. The plaintiff has never been ready and willing to perform

his part of the contract, even it is assumed for argument sake but
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
17

not conceding that the 1st defendant executed the suit agreement

of sale. The suit is, therefore, liable to be dismissed with costs. In

support of the above contentions he placed reliance on the

decisions in Jyotindra Bnhattacharjee v. Mrs. Sona Bala Bora

andothers,13 P.Subramanyam Sastry v. Lakshminarasamma 14

and B,Vijaya Bharathi v. P.Savitri and others.15

11. Issue No. 2 : Since it is one of the contentions of the

defendants that the suit is barred by limitation inasmuch as it was

filed five years of the alleged execution of the agreement after

issuing notice, this Issue is taken up first for consideration. While it

is the contention of the defendants that the suit is barred by

limitation, it is the contention of the learned counsel for the

plaintiff that the suit filed within three years of having knowledge

of the refusal of the defendants to execute a regular registered

sale deed it is within time.

12. To resolve the controversy we have to look at Art. 54 of the

Limitation Act. It deals with limitation for filing a suit for specific

performance. It is in two parts. While the first part deals with a

situation where a specific date is fixed for performance of the

contract, the second part deals with a situation where no such date

is fixed for performance of the contract. In either of the cases the

period of limitation is three years. Under the former part/limb, the

period of limitation starts from the date fixed for performance of

the contract and in the latter case where no such time or date is

fixed, the period of limitation starts from the date when the plaintiff

13 AIR 1994 Gau 99

14 AIR 1958 AP 22
15 2017(6) ALD 5 (SC)
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
18

has notice of refusal. In G.Krishna Murthy Raju’s case (supra), of

our Hon’ble High Court, it was held that the suit filed by the

plaintiff within three years from the date of knowledge about the

refusal of performance is not bared by limitation. In the cited case

also no date has been fixed for performance of the contract. The

present case is governed by second limb of Art. 54 of the

Limitation Act as no date is fixed in Ex.A.1 for performance of the

contract. It is mentioned in Ex.A.1 agreement that the plaintiff

shall pay the balance of sale consideration at the time of

registration of the sale deed. Admittedly, the plaintiff is no other

than the brother’s son of the 1 st defendant. As per the averments

made in the plaint as well as in the chief examination affidavit

P.W.1 stated that though he has been demanding the 1st defendant

to execute a registered sale deed by receiving the balance sale

consideration he went on postponing on some pretext or the other

and ultimately on 2.2.2009 he got issued a notice demanding him

to execute a sale deed after receiving the balance sale

consideration to which the 2nd defendant got issued a reply under

Ex.A.3 on 9.2.2009, on which date the plaintiff had notice of refusal

of the defendant No.1 to perform his part of the contract.

Therefore, the suit filed within a few months thereafter cannot be

said to be barred by limitation. This Issue is accordingly answered

in the negative.

13. Issue NO. 1 : Originally the plaintiff filed the suit against the

1st defendant for specific performance of the agreement of sale,

Ex.A.1, dt. 20.1.2004 said to have been executed by the 1 st

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
19

defendant in his favour in respect of 347.4 sq. yards out of a total

extent of 694 sq. yards in R.S.No. 96 of Bhavanipuram, Vijayawada.

After the defendants 2 and 3 came on record the plaint was

amended seeking a prayer to direct them also to join the 1 st

defendant at the time of execution of the sale deed.

14. In a suit for specific performance of contract of sale the law

insists upon a condition precedent for grant of decree that the

plaintiff must show his continued readiness and willingness to

perform his part of the contract in accordance with its terms from

the date of contract to the date of hearing .

15. In C.Manohar Reddy v. Alopi Shankar16 it was held that

when the self serving evidence adduced by the plaintiff is not

supported by any independent evidence and is not in accordance

with the probabilities of the case, it could not be believed that the

plaintiffs were ready and willing to perform their part of the

contract.

16. In Ch. Venkateswara Rao v. Meka Gangadhara Rao 17 it

was held that though it was not necessary for the plaintiff in a suit

for specific performance to tender the money to the defendant or

deposit it in court, he must atleast prove his capacity, apart from

his readiness and willingness.

17. Under Sec. 20 of the Specific Relief Act, the court cannot

granta decree merely because it is lawful to do so and such

discretion has to be exercised judiciously. In P.Chiranjeeva Rao

16 2007(3) ALT 40 (DB)

17 2017(6) ALT 710 (DB)
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
20

v. B.Koteswara Rao18 in a suit of such nature the plaintiff must

prove his bonafide before he seeks the assistance of the court to

compel the other person to perform his part of the contract. It was

further held that grant of relief of specific performance would

curtail the freedom of a party to the agreement to rescind from it,

such a course can be adopted only when the persons who seek the

relief convince the court about their bonafides and prove that the

entire blame for not taking the contract to its logical end is with the

other party.

18. In G.Rosaiah v. C.Balarami Reddy19 it was held that in a

suit for specific performance under Sec.16 of the Act, it is not

obligatory to decree specific performance, it is always one of

discretion, the discretion has to be exercised carefully with

circumspection, on sound and reasonable grounds guided by

judicial principles. It was further held that the court has first to

consider whether the plaintiff has established the case, his conduct

during, at and from the date of contract till date of suit bears great

relevance, in a case of specific performance, it is for the plaintiff to

establish that the covenants in the contract are clear, cogent and

fair and that he is ready and has always been ready and willing to

perform his essential terms of the contract from the date of

contract till the date of decree. It was further held that he must

come to the court with clean hands and if his conduct is tainted

with falsity of the case or unworthy of acceptance, equity denies

him the relief, that if he is entitled to the relief then it is the duty of

the court to consider the defence of the defendant and if the

18 AIR 2012 AP 17 : 2011(6) ALT 261
19 AIR 1989 AP 179
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
21

defence cuts at the case of the plaintiff in that eventuality also the

specific performance could be denied.

19. In Fakheer Chand v. Sudesh Kumar20 it was held that

compliance with readiness and willingness has to be in spirit and

substance and not from even mere pleadings and the continuous

readiness and willingness has to be seen from the conduct of the

plaintiff throughout not only from the pleadings but also from the

evidence and circumstances on facts. It was further held therein

that raise in prices after agreement and delay in seeking relief by

plaintiff is attributable to him are grounds to deny equitable relief

for specific performance.

20. In Aniglace v. Ram Latha21 it was held that the plaintiff

must manfiest that his conduct has been blemishless throughout

and mere pleading about his readiness and willingness is not

sufficient to show that heis prepared to perform his contract.

21. With reference to the question whether time is the essence of

the contract or not, a Constitution Bench of the Hon’ble Apex Court

in Chandrani v. Kamalrani22 held that the court may infer that it

is to be performed in a reasonable time from the terms of the

contract, nature of the property and surrounding circumstances

including the conduct of the parties.

22. In Dhanraj (died) per L.Rs., v. Saleh 23 it was held that in a

suit for specific performance of contract for sale the plaintiff must

not only aver in the plaint his readiness and willingness to perform

20 2006(7) Supreme 388

21 AIR 2005 SC 5303
22 (1993) 1 SC 519
23 2016(2) ALT 417
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
22

his part of the contract but also must establish that plea by

evidence right from entering into contract till filing of the suit and

even thereafter till date of delivery of Judgment. It was further

held therein that the plaintiff has to win or lose his case on his own

strength and not on the weakness in the case of the defendant.

23. Thus, the above legal position is clear and does not admit of

any exception that in a suit for specific performance the plaintiff

has to prove his readiness and willingness to perform his part of

the contract right from inception, that his conduct has been

blemishless from the beginning, at and during trial of the suit and

that the other side is at fault.

24. Since the case of the defendants is of total denial apart from

stating that the plaintiff has no capacity to purchase the property

etc., the burden becomes more onerous on the plaintiff to prove his

case. It may be stated at this stage itself that the decisions (1)

and (4) relied upon by the learned counsel for the plaintiff with

regard to the plea of readiness and willingness in the pleadings

have no application to the facts of the present case. In

J.Suryakantham’s case ( 1 supra) there is no specific averment in

the plaint as contemplated by Sec. 16(c) of the Specific Relief Act.

In that case as it was found that he has already complied with the

essential terms of the contract and nothing remains to be

performed on his part, it was held that it is not necessary to plead

such a fact. In Nagabhushana Gupta’s case (4 supra) also the

plaintiff has paid the entire amount covered under the contract and

possession was delivered to him. Under those circumstances it

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
23

was held that a verbal and pedantic repetition of the contents of

Sec. 16 of the Act is not necessary.

25. Having regard to the above legal position, now it has to be

seen with reference to the pleadings and evidence whether the

plaintiff is able to prove his case for grant of a decree for specific

performance.

26. It is not in dispute that the plaintiff is no other than the

brother’s son of the 1st defendant. Though in the reply notice got

issued by the 2nd defendant under Ex.A.3 it is stated that the 1 st

defendant is a dumb person and taking advantage of the said fact,

the suit agreement of sale was brought into existence by the father

of the plaintiff, the said case was improved by stating in the written

statement filed by defendants 2 and 3 that he is a deaf and dumb

person with 100% disability from birth and that on account of the

said disability he has also become a mentally retarded person. No

scrap of paper is produced to show that the 1 st defendant is a

totally deaf and dumb person with 100% disability and that he is

also mentally retarded person. No evidence is also adduced on

behalf of the defendants to show that at any point during his life

time till the date of filing of the suit or even thereafter that he has

availed any such facility or concession being extended to such

disabled or mentally retarded persons. Though it has been alleged

that D.W.2 has been looking after the property affairs of the 1 st

defendant, no evidence is produced to prove the said fact. A

perusal of the record also shows that he appeared before the court

on receipt of summons, filed vakalat and also his written

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
24

statement. No where he stated that he is a 100% disabled person

with mental retardation. If really he is a mentally retarded person

as alleged by the defendants 2 and 3, regarding which the written

statement of the 1st defendant himself is silent, he must be have

been represented by a guardian. The 2nd defendant who stated in

the reply notice Ex.A.3 that the 1st defendant is a dumb person has

not entered into the witness box for the reasons best known to her.

D.W.1 is the 3rd defendant in the suit and the son of defendants 1

and 2. In his chief examination affidavit he reiterated the very

same facts stated by him in the written statement. When the

vakalat containing the thumb impression of the 1 st defendant was

shown to him, he stated that the vakalat was filed by taking

assistance of his maternal uncle, i.e., D.W.2. He admitted in his

evidence that his father also received summons in the suit and

according to him the objection regarding the mental capacity of

the 1st defendant was not noted in the summons. He further

admitted that there is no endorsement on the summons that the

1st defendant is a deaf and dumb person. When the certified copy

of the written statement marked as Ex.A.8 was shown to him he

stated that it was got prepared with the help of his maternal uncle.

He was also made to admit in the cross examination that the

petition, I.A.No. 1241 of 2009 filed by him (D.W.1) for permission to

represent the 1st defendant as special power of attorney holder was

dismissed as pressed. He further admitted in the cross

examination that there is no recital in the special GPA that he has

been suffering from mental illness and that he was deaf and dumb.

He further admitted that in Ex.B.25, the gift deed, it is recited that

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
25

the plaint schedule property is the self acquired property of the

first defendant. According to him, it was prepared under the

supervision of his maternal uncle. But none of the documents

contain the signature of his maternal uncle, i.e., D.W.2. He also

admits that the stamp papers also do not disclose that the stamp

papers were purchased by his maternal uncle in the name of his

father. According to D.W.1, the properties covered under Exs.B.4

and B.5 were purchased by his maternal uncle in the name of his

father. Ex.A.12 is the true copy of the pension disbursement

statement for January 2017 where-under the 1 st defendant has

drawn the amount under old age pension scheme. D.W.1 admitted

that there is nothing to indicate in Ex.A.12 that the 1 st defendant

has been suffering from mental retardation or that he is a deaf and

dumb person.

27. There is no dispute about the fact that the 1 st defendant,

D.W.2 and two others filed a suit O.S.No. 1084 of 1993 against one

B.Sujatha and others. In the said suit, D.W.2 herein deposed as

P.W.1 being the fourth plaintiff in the said suit. D.W.1 admitted in

the cross examination that in the said suit D.W.2 was not appointed

as guardian for the person or property of his father. In the next

breathe he volunteered that he was representing all the plaintiffs in

the said suit. D.W.1 further admitted in the cross examination that

Ex.B.6 certificate does not disclose about the mental retardation of

the 1st defendant. It is his evidence that no such certificate was

obtained at Vijayawada where they were living. What is more, he

stated in his evidence that they did not avail any facility under
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
26

physically disabled quota till they obtained Ex.B.6. D.W.1 also

admitted in his evidence that there is a recital in Ex.B.8 that no

signs of active mental illness have been noticed during the period

of observation. Though D.W.1 stated that his father sold 326 sq.

yards of site to one P.Venkateswarlu and others under Ex.A.14

under the supervision of his maternal uncle, he was made to admit

in the next breathe that there is nothing to indicate in the sale

deed that it was executed under the supervision of his maternal

uncle. He also admitted in his evidence that there is also nothing to

indicate in Ex.A.14 that his father was suffering from any mental ill

health or that he was a deaf and dumb person.

28. Coming to the evidence of D.W.2 on this aspect, he admitted

that the sale deeds dt. 9.3.1989 and 27.2.1990 do not disclose that

the 1st defendant is a deaf and dumb person and that he is also

suffering from mental retardation or ill health. He also admitted

that in the earlier suit it is not mentioned that the 1 st defendant

herein is a deaf and dumb person and suffering from mental ill

health. Though he claims to have supervised at the time of

execution of Exs.B.25 and B.26, he admitted that he did not sign

on the said deeds either as an attestor or as an identifying witness.

29. Exs.B.28 and B.29 are the copies of the complaints given by

him to the II ADJ, Vijayawada and the Dist. Judge, Krishna at

Machilipatnam. He admitted that there is no mention in Exs.B.28

and B.29 that the first defendant is suffering from mental

retardation or that he is a deaf and dumb person. He denied the

suggestion that the original documents were received by the first

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
27

defendant himself and that the averments in para 7 of his affidavit

in that regard are false. Quite curiously at another stage of the

cross examination he states that he does not know whether by the

dates of Exs.B.28 and B.29 the documents were filed in other

courts. It is the evidence of D.W.1 on this aspect that by the date

of Exs.B.25 and B.26 the original documents are in other courts.

The defendants tried to rely on Ex.B.9, the certified copy of the

order in GOP. No. 188/2011 on the file of Prl. Dist. Judge, Nellore.

Being a post litus document, no reliance can be placed on it.

Further, admittedly neither the plaintiff in the present suit or other

persons who filed suits for specific performance against the 1 st

defendant were added as parties to the said GOP. Hence it is not

binding on the plaintiff. In that view of the mater no reliance can

be placed on Ex.B.9 to come to the conclusion that the 1 st

defendant is a deaf and dumb person with 100% disability and that

he was also suffering from mental retardation.

30. Thus, from the totality of the above oral and documentary

evidence, it must be held that the defendants 2 and 3 failed to

prove that the 1st defendant was a deaf and dumb person with

100% disability and was also suffering from mental retardation on

account of the said inability.

31. As already noticed by this court in the preceding paragraphs,

the plaintiff has to win or lose on the strength of his own case and

he cannot depend upon the weakness in the case set up by the

defendants. Even though in the reply notice got issued by the 2 nd

defendant it is stated that the suit agreement of sale is a forged or

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
28

fabricated one brought into existence with the help of the father of

P.W.1, in the cross examination D.W.1 stated that it might be that

the agreement contains the thumb impressions of his father and

volunteered that they might have been taken by taking him out.

The 1st defendant did not come into the witness box either to admit

or deny the agreement. The case of the defendants in their written

statements is of total denial. Therefore, mere admission of thumb

impressions of the 1st defendant on Ex.A.1 agreement does not

amount to its proof. Being a marksman it must be proved that he

put his thumb impressions after knowing its contents or that they

were read over to him. Its contents also have to be proved in the

mode known to law by examining its author or the attestors. P.W.2

is one of the attestors of Ex.A.1 agreement.

32. P.W.1 in his chief examination affidavit apart from reiterating

the very same facts stated by him in the plaint denied the

averments made in the written statements filed by the defendants.

A perusal of the agreement reads as if the 1 st defendant agreed to

sell the plaint schedule property to the plaintiff for a total

consideration of Rs.2,60,550/- and received advance sale

consideration of Rs. 2,40,550/-. It is further recited therein that the

plaintiff shall pay the balance sale consideration of Rs.20,000/- at

the time of registration of the sale deed. It does not prescribe any

time limit. Does it mean that the plaintiff should wait till eternity?

The plaintiff is expected to wait till a reasonable time. What is a

reasonable time depends upon facts and circumstances of each

case, nature of the property etc., According to P.W.1, he was doing

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
29

lorry transport business till 2012, thereafter he did real estate

business and he was also selling bricks and sand. According to

him, he did the said business till two or three years prior to

1.11.2017 (date of cross examination). But no evidence is

produced to prove the above said facts. He admitted that one

Pujya Lakshmi and P.V.Seshagiri Rao are related to him and they

also filed suits against the defendants. He denied the suggestion

that he has been looking after the suit, O.S.No. 110 of 2009 filed by

P.V.Seshagiri Rao and also O.S.No. 789/2009 filed by Pujya Lakshmi

on the file of this court. P.W.1 further admitted in his evidence that

his grand father, Lakshmiah Naidu is a native of Narravada of

Nellore District and that his father and the 1 st defendant were born

and brought up there. P.W.1 admitted about the filing of suit

O.S.No. 1084 of 1993 by the 1 st defendant and others against one

B.Sujatha and others and two of the vendors. Quite curiously he

feigns ignorance whether M.Thimmaiah was examined as P.W.1 in

the said suit on behalf of the plaintiffs therein. He also feigns

ignorance whether his father was a party to the said suit or not.

But he admits that the said suit was decreed against which Sujatha

and others preferred Appeal. When the case of the defendants

with regard to the mental illness etc., of the 1 st defendant was put

to him, he denied the same. He denied the suggestion that the

first defendant is not competent to enter into any contract. In the

absence of such plea being taken by the 1 st defendant in his

written statement, this suggestion has no legs to stand. He does

not remember the week day on which Ex.A.1 was executed at

Vijayawada. There is nothing to indicate either in Ex.A.1, in the

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
30

plaint or in the evidence of P.W.1 that Ex.A.1 was executed at

Vijayawada. It was suggested to him that on the date of the

alleged execution of the agreement, the 1 st defendant was not in

Vijayawada. P.W.1 admitted that P.W.2, one of the attestors, and

another attestor, Malyadri are related to him. According to him,

the suit agreement of sale was scribed by one Dakshinamurthy.

While he admitted that the agreement of sale in O.S.No. 233/08

was scribed by Dakshinamurthy, he feigns ignorance whether he

scribed the agreements in other suits, i.e., O.S.No. 110/09 and

O.S.No. 789/09. He further admitted that himself, Pujyalakshmi,

P.Venkateswarlu and P.V.Seshagiri Rao engaged same counsel and

conducting cases. He further admitted that after defendants 2 and

3 obtained gift deeds he got issued the notice to the 1 st defendant.

He denied the suggestion that he never did any lorry transport

business.

33. P.W.2 is one of the attestors of Ex.A.1 agreement. He stated

in para 3 of the affidavit that after being satisfied with the contents

of the agreement the 1st defendant he signed on the last and

second page of the agreement along with another attesetor after

having seen the 1st defendant putting his thumb impression and

thereafter the scribe signed on the document. It is elicited through

him that the houses of the 1 st defendant and M.Thimmaiah (D.W.2)

are situate near his house. It is his evidence that since the house

of the 1st defendant collapsed he is residing in some other place,

regarding which none of the other witnesses spoke. He cannot say

when the house of the 1st defendant collapsed. It is an admitted

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
31

fact and borne out from the evidence of witnesses that the 1 st

defendant is a resident of Narravada of Nellore District. It is also

an admitted fact that he was born and brought up there. But

according to the evidence of P.W.2, the 1 st defendant occasionally

comes to Vijayawada. Though he states that except the suit

agreement he did not sign on any of the papers with regard to the

transactions between the first defendant and others, when

confronted with Exs.B.1, B.3, and B.27 the certified copies of the

agreements of sale in favour of P.Venkateswarlu, P.V.Seshagiri Rao

and Pujya Lakshmi, he admitted that they contain his signatures.

At another stage of cross examination he stated that the

transaction took place in the house of P.W.1 and at that time

himself and another attestor Malyadri alone were present. In the

next breathe he states that the contents of the agreement were

read over to the 1st defendant by Dakshinamurthy. When it is the

case of the defendants that the 1 st defendant is a dumb or deaf

person and that his family members used to accompany him

wherever he goes, curiously it is the evidence of P.W.2 that on the

date of the alleged suit transaction none of the family members of

the 1st defendant were present. Even assuming for argument sake

but not conceding that the transaction took place at Vijayawada,

one would naturally expect a person from Vijayawada to attest a

document, but not a person from other District. This itself shows

the hand of the father of the plaintiff in the transaction. When the

plaintiff was able to pay major chunk of the consideration of Rs.

2,40,550/- on the date of the agreement i.e., 20.1.2004 itself, why

he did not choose to pay the balance sale consideration of

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
32

Rs.20,000/-, which is a pittance and obtain a regular registered

sale deed from the 1st defendant. There is no explanation why he

had to keep quiet till 2.2.2009, for more than 5 years, even though

the parties are related to each other. One would naturally expect a

person to complete the transaction as early as possible and get

title over the property. It is also highly improbable for the 1 st

defendant to have delivered possession of the plaint schedule

property to the plaintiff when he is due in a sum of Rs. 20,000/-

towards balance of sale consideration. It is also known how the

name of the plaintiff could be mutated in the concerned records

without there being a valid conveyance in his favour. Further,

merely because he pays the vacant land tax, that does not mean

that either he is in possession of the property or that he gets title

over the property. Hence no reliance can be placed on the receipts

showing payment of tax by him.

34. It is also pertinent to notice that in all the agreements,

Exs.B.1, B2 and B.27 except Rs.20,000/- (as in the present case)

the remaining sale consideration was said to be paid to the 1 st

defendant. By no stretch of imagination it can be said to be a

coincidence. The very same attestors who attested Ex.A.1 attested

Exs.B.1, B.2 and B.27. All the agreements were scribed by one

Dakshinamurthy of Vijayawada. All these circumstances caste any

amount of doubt with regard to the alleged sale transaction.

35. Even though the defendants failed to prove that the 1 st

defendant is a deaf and dumb person and also suffering from

mental retardation, that will not absolve the liability of the plaintiff
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
33

to prove his case to get a decree for specific performance. From

the totality of the facts and circumstances and the oral and

documentary evidence noticed above, this court is of the

considered opinion that the plaintiff failed to prove that he has

always been ready and willing to perform his part of the contract

right from the beginning of the transaction till the date of filing of

the suit and even thereafter. He is, therefore, not entitled to the

relief of specific performance as prayed for. This Issue is

accordingly answered in the negative.

36. Issue No.3 : It is the main contention of the defendants that

without seeking the relief of setting aside or cancellation of the gift

deeds, the suit is not maintainable. P.W.1 admitted in the cross

examination that only after coming to know about the execution of

the gift deeds under Exs.B.25 and B.26 he got issued the notice. In

B.Vijaya Bharathi’s case (supra) it was held that though the

plaintiff is aware of the two conveyances of same property she did

not ask for their cancellation and unless the said conveyances

were set aside, no decree for specific performance would possibly

follow. In the case on hand also, though the plaintiff was aware of

the execution of gift deeds by the 1 st defendant in favour of

defendants 2 and 3 he did not seek for any declaration that they

are not binding on him as he could not have prayed for their

cancellation being a non-party to the said documents. Being a suit

for specific performance, this court is of the considered opinion

that it is not necessary for this court to render opinion whether the
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
34

said gift deeds are binding on the plaintiff or not. This Issue is

accordingly answered.

37. Now coming to the decisions relied upon by the learned

counsel for the parties, the decision of the Madras High Court in

Sankaran Nayanan’s case also has no application to the facts of

the present case. In the said case also the plaintiff said to have

paid the total sale consideration and it was found that the defence

taken by the defendant was false. Under those circumstances it

was held that the plaintiff is entitled to specific performance. In

the case on hand, the plaintiff did not pay the total sale

consideration and on the other hand there is an unexplained delay

of more than 5 years in making a demand for specific performance.

38. In T.Nageswara Rao’s case, relied upon by the learned

counsel for the plaintiff, it was held that once the plaintiff proves all

the ingredients of a transaction of sale and makes out a case for

specific performance, court cannot refuse the said relief under the

concept of the relief of specific performance being discretionary.

Though there cannot be any dispute with regard to the proposition

of law laid down therein, it has no application to the facts of the

present case, inasmuch as in this case the plaintiff failed to make

out a case for specific performance.

39. The decision of the Kerala High Court also has no application

to the facts of the present case as in the cited case it was found on

evidence that the plaintiff was ready and willing to perform his part

of the contract and it was the defendant who defaulted. It was also

found that the plaintiff had been in continuous possession. Under

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
35

those circumstances it was held that the plaintiff is entitled to the

relief of specific performance.

40. In Trimbak Shakar’s case (supra) it was held when nothing

remained to be performed by the plaintiff, the question of averring

readiness and willingness does not arise. This decision also

apparently has no application to the facts of the present case.

41. The decision of the Hon’ble Apex Court in Tek Chand’s case

also has no application to the facts of the present case. In the cited

case, the execution of family settlement and the subsequent suit

for declaration of title by his children were found to be collusive.

42. In Vidyadhar’s case (supra) of the Hon’ble Apex Court it was

held that where a party to the suit does not appear into the

witness box and states his own case on oath and does not offer

himself to be cross examined by the other side, a presumption

would arise that the case set up by him is not correct. There

cannot be any dispute with regard to the above proposition of law.

But it has no application to the facts of the present case, because

the son of the 1st defendant has entered into the witness box and

deposed as D.W.1 on behalf of Defendants 1 to 3.

43. The decision in Saraswathamma’s case also has no

application to the facts of the present case. In the cited case, the

vendor did not enter into the witness box but she made

correspondence with the developer and Bank to defeat the

legitimate rights of the plaintiff under the agreement and the

owner has forcibly taken possession of the flat by breaking open

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
36

the lock and has inducted her brother. Under those circumstances,

it was held that the plaintiff is entitled to the relief of specific

performance.

44. Similarly the decision of the Hon’ble Apex Court in Zarina

Siddiqui’s case (supra) also has no application to the facts of the

present case.

45. Coming to the decisions relied upon by the learned counsel

for the defendants, in P.Subrahmanya Sastry’s case (supra) it was

held that the burden of proof is on the party who alleges that a

document he relies on as having been executed by the alleged

lunatic was executed during a lucid interval. The said decision has

no application to the facts of the present case as it is not the case

of the plaintiff that the 1st defendant is a lunatic and that he

executed the agreement during a lucid interval.

46. Similarly the decision of Gauhati High Court in Jyotindra

Bhattacharjee’s case (supra) also has no application to the facts of

the present case as it deals with a transaction of sale by a person

of unsoundness of mind.

47. Issue No.4 : In view of the finding on Issue No.1, it is held

on this Issue that the plaintiff is not entitled to the relief of specific

performance as prayed for.

48. IN THE RESULT, the suit is dismissed. No costs.

Prepared, corrected and pronounced by me in open court on

this the 5th day of January, 2018.

VII ADDL. SENIOR CIVIL JUDGE,

VIJAYAWADA.
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
37

APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF:
P.W.1 : Babburi Yadunandana Prasad
P.W.2 : Mekapati Malakonda Rayudu

FOR DEFENDANTS:
DW.1 : Babburi Purnchandra Rao
DW.2 : Madala Timmaiah

DOCUMENTS MARKED
FOR PLAINTIFF:
Ex.A1 : Possessory agreement of sale, dt. 20.01.2004 executed by
D1 in favour of plaintiff.
Ex.A2 : Office copy of lawyer’s notice, dt. 02.02.2009.
Ex.A3 : Reply issued by the wife of first defendant for item No.2.
Ex.A4 : Acknowledgment.
Ex.A5 : Copy of registered sale deed, dt. 27.02.1990 standing in
the name of first defendant. (marked subject to objection)

Ex.A6 : Two property tax receipts standing in the name of plaintiff.

Ex.A7 : Certified copy of vakalat in the present suit.

Ex.A8 : Certified copy of written statement in the present suit.

Ex.A9 : Certified copy of said petition along with affidavit.

Ex.A10 : Demand notice of D.No.75-10-7 stands in the name of

plaintiff.

Ex.A11 : Certified copy of affidavit and petition in I.A.No.324/2010

in O.S.No.1334/2008 on the file of IV Addl. Senior Civil Judge,
Vijayawada.

Ex.A12 : True copy of the pension disbursement statement for

January, 2017.

Ex.A13 : Certified copy of petition in GOP.188/2011.

Ex.A14 : Registration extract of the sale deed, dt. 08.12.2004.

Ex.A15 : Certified copy of special GPA annexed to Ex.A9.

O.S.No.465/2009, dt.05.01.2018. FAIR COPY
38

FOR DEFENDANTS:
Ex.B1 : Certified copy of agreement, dt. 20.05.2006.
Ex.B2 : Certified copy of agreement, dt. 03.04.2006.
Ex.B3 : Certified copy of Agreement, dt. 20.05.2006.
Ex.B4 : Certified copy of sale deed, dt. 09.03.1989 executed by
Sujatha and others in favour of D1.
Ex.B5 : Certified copy of sale deed, dt. 27.02.1990 standing in
the name of first defendant executed by Sriramulu.
Ex.B6 : Certified copy of Medical certificate issued in favour of D1
Ex.B7 : Certificated medical examination report of D1, dt.
12.12.2011.
Ex.B8 : Certificated medical examination report of D1, dt.
31.12.2011.
Ex.B9 : Certified copy of decree and GOP.No.188/2011, dt.
31.01.2012.
Ex.B10 : Certified copy of order in GOP No.188/2011, dt.
31.01.2012.
Ex.B11 : Certified copy of plaint in O.S.No.1334/2008 on the file of
Prl. Sr. Civil Judge, Vijayawada.
Ex.B12 : Certified copy of plaint in O.S.No.1338/2008 on the file of
IV ASCJ., Vijayawada.
Ex.B13 : Certified copy of notice, dt. 02.01.2009 issued by
plaintiff’s counsel to D1.
Ex.B14 : Certified copy of reply notice, dt. 12.01.2009.
Ex.B15 : Certified copy of notice, dt. 13.12.2008 issued by
plaintiff’s counsel to D1 on behalf of G.Pujyalakshmi.
Ex.B16 : Certified copy of reply notice, dt. 05.01.2009.
Ex.B17 : Certified copy of notice, dt. 23.09.2012 issued on behalf
of plaintiff to one P.Venkateswarlu.
Ex.B18 : Certified copy of plaint in O.S.NO.789/2009 filed by
Pujyalakshmi.
Ex.B19 : Certified copy of plaint in O.S.No.110/2009 filed by
P.V.Seshagiri Rao against D1 on the file of II ADJ., Vijayawada.
Ex.B20 : Certified copy of plaint in O.S.No.233/2008 filed by
plaintiff against P.Venkateswarlu.
Ex.B21 : Certified copy of valuation certificate for the period from
01.01.1989 to 21.12.2008.
Ex.B22 : Certified copy of EC from 01.01.1989 to 21.12.2008.
O.S.No.465/2009, dt.05.01.2018. FAIR COPY
39

Ex.B23 : Certified copy of EC from 01.01.1989 to 22.12.2008.

Ex.B24 : Xerox copy of tax receipt, dt. 22.11.2017 (marked
subject to objection as the original filed in other suit.)
Ex.B25 : Original gift deed, dt. 11.03.2008 executed by first
defendant in favour of defendants 2 and 3.
Ex.B26 : Original gift deed, dt. 27.05.2008 executed by D1 in
favour of D2 and D3.
Ex.B27 : Certified copy of possessory agreement of sale, dt.
24.05.2006 said to have been executed by D1 in favour of
G.Pujyalakshmi.
Ex.B28 : Copy of complaint given by DW.2, dt. 28.10.2009 to II
ADJ, Vijayawada.
Ex.B29 : Certified copy of complaint given by DW.2 to Hon’ble
District Judge, Krishna, Machilipatnam on 15.03.2010.
Exs.B30 and B31 : Certified copies of acknowledgments for
Ex.B29.
Ex.B32 : Certified copy of affidavit and petition in RDA
No.135/2011 in O.S.No.1084/1993 on the file of I AJCJ., Vijayawada.

VII ADDL.SENIOR CIVIL JUDGE,

VIJAYAWADA.