AS/1744/1995 of MATTA MAHALAKSHMAMMA Vs NIMMAGADDA RAJYALAKSHMI on 30 December 2014

JUDGMENT:

The unsuccessful plaintiff in Original Suit No.6 of 1986 on thefile of the Court of Subordinate Judge, Kavali, Nellore District (for short,‘the trial Court’), preferred this Appeal challenging the decree andjudgment dated 03.02.1994, wherein the suit filed by the plaintiff forspecific performance of agreement of sale dated 19.12.1985 wasnegated.

2. For convenience of reference, the ranks given to the parties inO.S.No.6 of 1986 will be adopted throughout this judgment.

3. Initially, appeal was preferred before the District and SessionsJudge's Court, Nellore, which was numbered as A.S. No.1744 of 1995,but on point of jurisdiction, it was returned and presented before thisCourt.

4. The plaintiff filed the suit for specific performance of agreementof sale dated 19.12.1985 and for consequential relief of possessionand also to grant permanent injunction restraining the 1[st] defendantand her legal heirs from alienating the plaint schedule property to thirdparties, alleging that the 1[st] defendant is the owner of the propertybearing door No.8-36-86 situated near Savitramma Devasthanam,Peddapavani Road, Kavali, who offered to sell the property, and theplaintiff agreed to purchase the same, settled the bargain atRs.70,000/-, obtained an agreement of sale dated 19.12.1985 dulysigned by the 1[st] defendant; paid advance sale consideration ofRs.49,000/- under the agreement of sale, agreeing to pay balance saleconsideration of Rs.21,000/- at the time of execution of registered saledeed and take delivery of vacant possession of the property. As per theterms and conditions of the agreement of sale, balance of Rs.21,000/- has to be paid on or before 19.03.1987 and obtain registered saledeed at her expenses.

5. The plaintiff was always ready and willing to perform her part ofcontract i.e., payment of balance of sale consideration and obtainregistered sale deed, but the 1[st] defendant did not co-operate forexecution of registered sale deed by receiving balance of saleconsideration. Thereupon, the plaintiff demanded the 1[st] defendant,through mediators by name Gundluru Venkata Rajeswara Rao andMatta Venkata Subbarao, for execution of registered sale deedreceiving balance of sale consideration, but she avoided to executeregistered sale deed, postponed the same on one pretext or the other.On the other hand, the husband of 1[st] defendant started threateningthe plaintiff that even if she goes to the Court, the 1[st] defendant wouldnot execute registered sale deed. Thus, the 1[st] defendant committedbreach of terms and conditions of contract and, thereby, the plaintiffcould not perform her part of obligation under the agreement of sale.

6. The 1[st] defendant, agreed to deliver vacant possession of theproperty to the plaintiff immediately after execution of registered saledeed in her favour, after receiving balance of sale consideration,avoided to execute the registered sale deed, receiving balance of saleconsideration and deliver vacant possession of the property, thoughthe plaintiff is ready and willing to perform her part of contract.

7. The 1[st] defendant mortgaged the schedule property to onePendyala Lakshminarayana executing a registered mortgage deedabout two years prior to execution of agreement of sale and the saidPendyala Lakshminarayana filed a Suit in O.S. No.241 of 1986 on thefile of District Munsif Court, Kavali, for realization of the mortgage debt. However, it is learnt that the 1[st] defendant is contemplating to alienatethe schedule property to 3[rd] parties with a view to defeat the rights of the plaintiff, the plaintiff also sought for relief of permanent injunction.The plaintiff is always ready and willing to perform her part ofobligation under contract of sale, but the 1[st] defendant failed to co-operate and execute registered sale deed, hence, the suit.

8. The 1[st] defendant filed written statement admitting herownership over the schedule property and resisted the claim of theplaintiff on the following grounds:

(a) The 1[st] defendant never executed any agreement ofsale in favour of the plaintiff, agreeing to sell the propertyfor a sum of Rs.70,000/-, receiving Rs.49,000/- asadvance of sale consideration on the same date and thesaid agreement is created for the purpose of the suit; (b) The 1[st] defendant never offered to sell the propertyand never received any part of sale consideration ascontended by the plaintiff. The plaintiff never issued anynotice informing about execution of agreement of saledated 19.12.1985, calling upon her to execute registeredsale deed and on this ground alone, the plaintiff is notentitled to claim the relief of specific performance ofagreement of sale;

(c) The 1[st] defendant denied the alleged proclamationmade by her husband to alienate the property to 3[rd]parties and that the scribe and the attestors are the closeassociates of the plaintiff and in collusion with them, shecreated the agreement of sale with an intention to knockaway the property. Thereby, the agreement of sale is notenforceable under law and, consequently, the plaintiff isnot entitled to claim the relief of specific performance andpermanent injunction and, finally, prayed to dismiss thesuit against the 1[st] defendant.

9. While the matter stood thus, the plaintiff impleaded the 2[nd] defendant, alleged purchaser of the property, vide order dated19.02.1990 passed in I.A. No.441 of 1989 and suitably amended theplaint incorporating paragraphs 6(a) and 6(b) contending that theagreement of sale said to have been executed by the 1[st] defendant infavour of the 2[nd] defendant is created and concocted, brought intoexistence in connivance with the 1[st] defendant, with a view to defeatthe rights of the plaintiff and the said agreement is nominal and notsupported by any consideration, thereby, it is not binding on theplaintiff, but the reliefs in Para No.17 were not appropriately amended.

10. The 2[nd] defendant, after impleading him, filed his writtenstatement disputing agreement of sale executed in favour of theplaintiff by the 1[st] defendant contended that he purchased theschedule property from the 1[st] defendant for Rs.70,000/- under anagreement of sale dated 12.01.1984, paid Rs.45,000/- as earnestmoney on 12.01.1984; subsequently he filed a Suit in O.S. No.35 of1987, pending before the trial Court, for the relief of specificperformance.

11. It is further contended that as per the agreement of sale dated12.01.1984, if the 1[st] defendant repays Rs.45,000/- with interest at18% p.a., within 15 months from 12.01.1984, the agreement standscancelled and if the 1[st] defendant fails to repay the earnest money ofRs.45,000/- with interest thereon at 18% p.a., by 12.04.1985, he has topay balance sale consideration of Rs.25,000/- without interest and the1[st] defendant has to execute registered sale deed in his favour, but the1[st] defendant had neither repaid Rs.45,000/- with interest, as agreed,nor executed any agreement of sale in his favour. Hence, the 2[nd]defendant was constrained to file the suit in O.S. No.35 of 1987, before

the trial Court, for specific performance of agreement of sale. The 1[st]defendant was continuing in possession of the property on payment ofmonthly rent of Rs.250/- and, accordingly, she paid rent till December,1986, thereafter, failed to pay rent to the 2[nd] defendant and thehusband of the 1[st] defendant, who is a close friend of the plaintiff,colluded together and brought into existence the agreement of saledated 19.12.1985 with a view to defeat the agreement of sale dated12.01.1984. Thus, the possession of the plaintiff over the scheduleproperty is permissive.

12. Though the 2[nd] defendant is always ready and willing toperform his part of contract, the 1[st] defendant failed to co-operate andexecute registered sale deed on one pretext or the other.

13. Finally, the 2[nd] defendant contended that the agreement of saleallegedly executed by the 1[st] defendant in favour of the plaintiff isnominal and created for the purpose of this suit to defeat the rights of2[nd] defendant and, finally, prayed to dismiss the suit against the 2[nd] defendant.

14. Basing on the above pleadings, the trial Court framed thefollowing issues:

1) Whether the suit agreement of sale dated 19.12.1985is true and valid?

2) Whether the plaintiff is entitled for specificperformance of agreement of sale dated 19.12.1985?performance of agreement of sale dated 19.12.1985?

3) To what relief?

Additional Issue framed on 25.04.1990:

Whether the agreement of sale dated 12.01.1984 infavour of the 2[nd] defendant is true, valid and binding onthe plaintiff?

15. As the 2[nd] defendant also filed separate suit in O.S. No.35 of1987 for specific performance of agreement of sale dated 12.01.1984,the trial Court clubbed and tried both the suits, recorded evidence inO.S. No.6 of 1986 and pronounced common judgment by dismissingboth the suits on 03.02.1994.

16. During course of trial, on behalf of the plaintiff, PWs.1 to 5 wereexamined and marked Exs.A-1 to A-3. On behalf of defendants,DWs.1 to 5 were examined and marked Exs.B-1 to B-4.

17. Upon hearing the argument of both the counsel, consideringoral and documentary evidence available on record, the trial Courtdismissed both the suits. However, no appeal is preferred against thejudgment in O.S. No.35 of 1987, which was decided along with O.S.No.6 of 1986, which is subject matter of this appeal. Therefore, I myselfrefrain to discuss anything about O.S. No.35 of 1987.

18. The plaintiff in O.S. No.6 of 1986 alone preferred the presentappeal on various grounds challenging the decree and judgment andthe main contentions of the plaintiff in the grounds of appeal are asfollows:

(a) The trial Court failed to consider oral anddocumentary evidence in proper perspective anddisbelieved Ex.A-1, agreement of sale, though the 1[st]defendant received Rs.49,000/- on the date of executionof Ex.A-1 i.e., on 19.12.1985; (b) The conclusion arrived by the trial Court that thewitnesses examined on behalf of the plaintiff are notstrangers and members of the family of the plaintiff andthereby their evidence cannot be believed is erroneousfor the reason that the family members and closeassociates of plaintiff alone were available at the time of

execution of Ex.A-1 and the plaintiff never anticipatedthat the 1[st] defendant would go to the extent of denyingexecution of Ex.A-1; therefore, taking advantage ofpresence of their family members and associates, thetransaction of execution of Ex.A-1 was completed, butthe trial Court on erroneous appreciation disbelieved theexecution of Ex.A-1;

(c) The observations of the trial Court that Ex.A-1 is to besent to the handwriting expert is incorrect and, at best, itis for the 1[st] defendant to send the document for opinionof handwriting expert when they raised a specific pleathat Ex.A-1 is a forged document; (d) When the document was not sent to the handwritingexpert calling for opinion, the trial Court would haveexercised its power conferred under Section 73 of theIndian Evidence Act, 1872 to compare the disputedsignatures with the admitted signatures of the 1[st]defendant; instead of resorting to such procedure,erroneously concluded that Ex.A-1 is erroneous one; (e) Finally, it is contended that when the signature ofPW.5 on Ex.A-3 is compared with his signature on Ex.A-1, the trial Court ought not to have found any variation inthe signatures, but the trial Court without exercising itspower conferred under Section 73 of the Indian EvidenceAct, erroneously recorded the finding; (f) The trial Court failed to consider the educationalbackground of both the parties while appreciating theevidence, more particularly, while deciding the specificplea of forgery set up by the 1[st] defendant; (g) The trial Court recorded a finding that the plaintifffailed to prove her readiness and willingness, but according to settled law, the plaintiff need not deposit theamount into Court to establish her readiness andwillingness to perform her part of obligation under theagreement of sale. Therefore, the finding of the trial Courtis not based on any legal reasoning; if the evidence onrecord is appreciated in proper perspective, the trialCourt would have granted a decree in favour of theplaintiff for specific performance of agreement of sale butthe trial Court committed a grave error in dismissing thesuit, finally, prayed to allow the appeal, setting-side thedecree and judgment under challenge, by granting therelief of specific performance of agreement of sale dated19.12.1985.

19. During course of argument, Sri T.S. Anand, learned counsel forthe plaintiff-appellant, would contend that the 1[st] defendant is anilliterate lady and there is every possibility of changing her style ofsigning on the document. In such case, the trial Court would havecompared at least the admitted signatures with the disputed one tocome to an independent conclusion but the trial Court made anerroneous observation that the plaintiff did not take steps to send thedocument to the expert for opinion though the burden is upon the 1[st]defendant to prove that Ex.A-1 is not a genuine document.

20. It is further contended that, in view of the prevailingcircumstances in the instant case, no prior notice need be given as thehusband of he 1[st] defendant openly declared that they are going toalienate the property in favour of third party by executing registeredsale deed. Therefore, failure to issue notice prior to institution of suit isnot fatal in the present set of circumstances, but the trial Court did notappreciate this contention in proper perspective.

21. Finally, it is contended that when the 2[nd] defendant filed suit in O.S. No.35 of 1987, which was dismissed and no appeal is preferred,the agreement marked as Ex.A-1 is to be believed and the trial Courtwould have granted a decree at least in favour of the plaintiff when sheis able to prove that she is always ready and willing to perform her partof obligation under agreement of sale, strictly adhering to Section 16(c)of the Specific Relief Act, 1963 by exercising discretion under Section20 of the Specific Relief Act, but committed a grave error in dismissingthe suit and, finally, prayed to allow the appeal setting aside thedecree and judgment under challenge.

22. Per contra, Sri M.V. Suresh Kumar, learned counsel for the 1[st]defendant-respondent pointed out several inconsistencies in theevidence, more particularly, about the place of execution of Ex.A-1, soalso the presence of mortgagor who is having first charge over theproperty and variation in the letters in the signature of the 1[st] defendanton Exs.A-1 and A-3; the style of writing the document including thespace between the lines both in first and second pages to disprovethat Ex.A-1 is a concocted document. It is further contended that anotice under form Nos.47 and 48 of Appendix-A to Civil ProcedureCode, 1908 is mandatory and when no such notice was issued, theplaintiff is disentitled to a decree for specific performance of agreementof sale, apart from that, the 1[st] defendant cannot be restrained fromalienating the schedule property by granting permanent injunctionsince the plaintiff is no way concerned with the property and did notacquire any title to the property as on the date of filing of the suit,thereby, the plaintiff is disentitled to claim the relief of specificperformance of agreement of sale, so also perpetual injunction underSection 38 of the Specific Relief Act and prayed to dismiss the Appealconfirming the decree and judgment passed by the trial Court.

23. Considering rival contentions, perusing material available onrecord including oral and documentary evidence and the decree and judgment under challenge, the points that arise for consideration are:

1) Whether Ex.A-1, agreement of sale dated 19.12.1985,is true, valid and binding on the plaintiff and enforceableunder law?

2) Whether the plaintiff is always ready and willing toperform her part of contract under the original of Ex.A-1dated 19.12.1985?

3) Whether the defendants and their legal heirs berestrained from alienating the schedule property, in anymanner, what so ever, by granting permanent injunction?

24. POINT No.1: The suit is based on Ex.A-1, agreement of saledated 19.12.1985 allegedly executed by the 1[st] defendant in favour ofthe plaintiff agreeing to sell the property for Rs.70,000/-, receivedadvance sale consideration of Rs.49,000/- on the date of execution ofEx.A-1 while agreeing to receive balance of sale consideration ofRs.21,000/- within 15 months i.e., on or before 19.03.1987, but the 1[st]defendant did not execute the registered sale deed, receiving balanceof sale consideration, though the plaintiff is ready and willing toperform her part of obligation under Ex.A-1. Whereas, the 1[st]defendant defended the suit raising the specific contention that Ex.A-1is a created or concocted document to defeat her rights and that she isnot under an obligation to receive balance of sale consideration andexecute registered sale deed by denying the very execution of Ex.A-1and receipt of advance of Rs.49,000/- on the alleged date of executionof Ex.A-1 on 19.12.1985; thereby, agreement of sale, Ex.A-1, is aforged document and unenforceable under law. Thus, the plaintiffaffirmed execution of Ex.A-1, dated 19.12.1985, and the 1[st] defendantdenied the same contending that it is a forged or created document. Undoubtedly, the 1[st] defendant can take any plea includinginconsistent pleas, but at the time of proceeding with the trial, she has to restrict her plea to any one of the pleas specially, but in the presentcase, the plea of the 1[st] defendant is total denial contending that Ex.A-1 is created or concocted document directly indicates that Ex.A-1 is aforged document.

25. When the plaintiff claimed rights based on Ex.A-1 and the 1[st]defendant denied the very execution and contended that it is createddocument, the initial onus of proof is on the plaintiff to prove theexecution of Ex.A-1, passing of consideration of Rs.49,000/- asadvance sale consideration on the date of execution of Ex.A-1.

26. To substantiate her contentions, the plaintiff herself wasexamined as PW.1 while examining the scribe and attestors of Ex.A-1as PWs.2 to 5. At this stage, it is appropriate for this Court to advert totheir evidence to find out the truth in the case set up by the plaintiff,since the truth is the hallmark of justice and the entire journey of ajudge is to discern the truth from the pleadings, documents andarguments of the parties as held by the Apex Court in Dilip Singh Vs.

State of Utter Pradesh and others[[1]], wherein the Apex Courtobserved that the truth constitutes an integral part of the justicedelivery system which was in vogue in pre-independence era and thepeople used to feel proud to tell truth in the Courts irrespective of theconsequences. However, post-independence period has seen drasticchanges in our value system.

27. In a recent judgment of the Apex Court in A. Shanmugam Vs.Ariya Kshatriya Rajakula Vamsathu Madalaya NandhavanaParipalanai Sangam[[2]], it was observed as follows at paragraphs 32to 34:

“Truth alone has to be the foundation of justice. The entirejudicial system has been created only to discern and findout the real truth. Judges at all levels have to seriouslyengage themselves in the journey of discovering the truth.

That is their mandate, obligation and bounden duty.

Judicial system will acquire credibility only whenpeople will be convinced that justice is based on thefoundation of the truth.”

28. In Mohanlal Shamji Soni Vs. Union of India[[3]], the Apex Court observed as follows:

'In such a situation a question that arises for consideration iswhether the Presiding Officer of a Court should simply sit as amere umpire at a contest between two parties and declare atthe end of the combat who has won and who has lost or isthere not any legal duty of his own, independent of the parties,to take an active role in the proceedings in finding the truthand administering justice? It is well accepted and settledprinciple that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law indispensing justice because it is the duty of a Court not only todo justice but also to ensure that justice is being done.”

29. In view of the principles laid down by the Apex Court in Shanmugam[2] and Mohanlal[3], it is the obligation of every PresidingOfficer of the Court to make every endeavour to find out the truth forrendering complete justice.

30. In Ritesh Tiwari and another Vs. State of Utter Pradesh andOthers[[4]], the Apex Court quoted as follows:

“Every trial is a voyage of discovery in which truth is the quest.”

31. In view of the principles referred supra, the process of renderingjustice in judicial system depends upon the truth. Therefore, everyjudge must act like an umpire to see whether there is any truth in thecase set- up by any of the parties and decide the matter in accordancewith law. In judicial process truth assumes much importance and thejudge has to make an endeavour to discern the truth from the factsbefore it, either to grant or deny the relief.

32. PW.1 is the plaintiff in the suit and in her examination-in-chief

she reiterated what she pleaded in the plaint. The learned counsel forthe 1[st] defendant pointed out certain admissions in the evidence ofPW.1, more particularly, presence of husband of the 1[st] defendant,Matta Subba Rao, plaintiff's husband, G. Rajeswara Rao, who attestedEx.A-1 and scribe, P. Rama Mohana Rao, and also about theagreement for delivery of possession after registration. Since presenceof the relatives of the plaintiff alone is doubtful about execution ofagreement of sale, Ex.A-1, her evidence cannot be believed,according to the contention of the 1[st] defendant. In the cross-examination, she admitted that bargain was settled about a week priorto execution of Ex.A-1 on 19.12.1985. The total extent is about 40ankanams and that she is aware about the mortgage debt of PendyalaLakshmi Narayana over the schedule property and it was scribed byher relative attested by her son Matta Venkata Subbaiah and the otherattestor Raja Rajeswara Rao is her neighbour, but surprisingly when aquestion was put to her whether the signature of the 1[st] defendant wastaken on blank papers at the time of obtaining mortgage deed in favourof her brother, she pleaded ignorance about it. Asuggestion was put to her that Ex.A-1 was written in two pages anddenied by her. In fact, the evidence on record at best shows that all theattestors and scribe are closely related to her and the property wasburdened with a mortgage over the property. According to PW.1, theagreement was written at the house of the 1[st] defendant i.e., suitschedule property which is near to Savitramma Gudi in the outskirts ofKavali (vide cross-examination dated 26.10.1990 by Advocate V.R.R.).The transaction took place at about 10.30 a.m. and that she purchasedthe stamp papers near the house of stamp vendor for Rs.5/- a dayearlier. Thus, it is clear from evidentiary admissions of PW.1, theattestors are related to her, one of the attestors is her son and other isher close relative and she purchased only Rs.5/- stamp paper,obtained an agreement of sale though the property is burdened with a mortgage created in favour of Pendyala Lakshminarayana, who is herbrother.

mortgage created in favour of Pendyala Lakshminarayana, who is herbrother.

33. PW.2, Pendyala Rama Mohana Rao, is the son of PendyalaLakshminarayana, the mortgagor who is no other than a close relativeof the plaintiff and according to him, the plaintiff purchased scheduleproperty from the defendant and paid Rs.49,000/- as advance on thedate of execution of agreement of sale and scribed Ex.A-1 and in thepresence of attestors, the 1[st] defendant signed on Ex.A-1. In the cross-examination, he admitted that he is carrying on medical shop businessopening the same at 7.30 or 8.00 a.m. on every day and goes to homefor lunch etc., The transaction covered by Ex.A-1 has taken place nearthe house of the 1[st] defendant and at the time of execution of Ex.A-1,PW.2 himself, plaintiff, 1[st] defendant and attestors were present, it wasscribed at 11.00 a.m., and he went there as the plaintiff called him. Theagreement was first signed by the 1[st] defendant. PW.2 admitted thathe did not scribe any document earlier to scribing Ex.A-1. There is aminor discrepancy with regard to the time of execution of Ex.A-1 andPW.2 is not a professional document writer and it is the first agreementwhich he scribed. In the cross- examination (vide cross-examinationdated 26.10.1990 by Advocate V.R.R.), PW.2 admitted that he studiedup to intermediate, having no experience in scribing documents andEx.A-1 is the first document he scribed. His evidence further goes toshow that when he was in the shop, the plaintiff and her son came tohim and asked to accompany them to the schedule property, which istwo furlongs away from his shop, for entering into a sale transaction.These admissions are of no use to disprove the case of the plaintiffexcept the minor discrepancy about time of execution of Ex.A-1. PWs.3and 4 are the attestors of Ex.A-1.

34. PW.3 is the nearest relative of PW.1, as admitted by her. Asusual, he testified in favour of the plaintiff about the execution of Ex.A-1

in his presence by the 1[st] defendant. In the cross-examination (videcross-examination dated 05.11.1990 by Advocate, V.R.R.), headmitted that the agreement was written at the house near VainandanaPress at about 9.30 a.m., both parties along with the attestors, scribeand husband of 1[st] defendant came to his house. This discrepancypointed out by the learned counsel for the 1[st] defendant creates anyamount of suspicion about his presence at the time of execution ofEx.A-1 for the reason that, according to PW.1, Ex.A-1 was executed atthe schedule property at 10.30 a.m.; according to P.W.2, it wasexecuted at 11.00 a.m., whereas according to PW.3 it was executed at9.30 a.m. at his house near Vainandana Press. Similarly, PW.4, son ofPW.1, supported the plaintiff's version in all respects, but curiouslytestified that PW.2 scribed Ex.A-1 to the dictation of the husband of the1[st] defendant. The contents of Ex.A-1 were read over after it wasscribed in the presence of PW.4, attestors and scribe etc., he spokeabout payment of Rs.49,000/- as advance of sale consideration. In thecross-examination, surprisingly, he spoke about presence of PendyalaLakshminarayana, mortgagor of the property, at the time of executionof Ex.A-1. However, a suggestion was put to him that Ex.A-1 wasbrought into existence and denied by him. In the cross-examination ofPW.4 (vide cross-examination dated 26.10.1990 by the advocateV.R.R.), strangely PW.4 stated that by the date of execution of Ex.A-1,the plaintiff was in possession of entire sale consideration butregistered sale deed was not obtained as the possession of the housecould not be given till the 1[st] defendant secured alternativeaccommodation, therefore, the execution of regular registered saledeed was postponed. This fact was brought into existence for the firsttime in the cross-examination of PW.4 and it was never the case of theplaintiff, at any stage, including at the stage of her examination-in-chief.

35. PW.5 is husband of the 1[st] defendant. He denied the very

35. PW.5 is husband of the 1[st] defendant. He denied the very execution of Ex.B-2, agreement of sale dated 12.01.1984, executed bythe 1[st] defendant in favour of 2[nd] defendant while admitting that theproperty was mortgaged with the brother of PW.1 i.e., PendyalaLakshminarayana and handed over sale deeds to him and the saledeed was not returned and later filed suit. In the cross-examinationdated 08.11.1989, he denied the signatures on Ex.A-1 as attestor andhe was cross-examined after obtaining permission from the Court. Asincere attempt was made in the cross-examination of PW.5 to elicitthat the signature appearing on the summons and the signature onEx.A-1 as attestor is similar but nothing could be elicited by thecounsel for the 2[nd] defendant to prove his presence at the timeexecution of Ex.A-1. Therefore, the entire evidence on record is basedon the interested testimony of PW.1, her son, her nephew and theother close relatives.

36. The document was allegedly executed at Kavali which is amoderate town; if really, Ex.A-1 was executed by 1[st] defendant, itcould have been attested by any other independent witness, butattestation of Ex.A-1 by son of the plaintiff, other relatives and scribingof the same by her nephew, son of mortgagor, PendyalaLakshminarayana creates any amount of suspicion because of theirclose relation with one another. There is every possibility to createsuch document. When execution of Ex.A-1 is surrounded bysuspicious circumstances, it is for the plaintiff to dispel thosesuspicious circumstances by adducing cogent and satisfactoryevidence, but her attempt to prove execution of Ex.A-1 proved futile; onthe other hand, examination of PWs.2 and 3 created more suspicion inexecution of Ex.A-1 for the reason that according to PW.1, it wasexecuted at 10.30 a.m., at the suit schedule property by 1[st] defendant;whereas, the testimony of PW.2 discloses that it was executed at 11.00a.m. at the suit schedule property, but curiously PW.3 testified that itwas executed at 9.30 a.m., near his house at Vainandana Press.

Therefore, there is any amount of discrepancy in the evidence abouttime and place of execution of Ex.A-1, but this fact was not explainedby the plaintiff; thereby, the presence of PWs.2, 3 and 4 is highlydoubtful and unless the evidence of PWs.1 to 5, who are closelyrelated to one another, is corroborated by independent testimony, it isdifficult for this Court to believe the execution of Ex.A-1, moreparticularly, when the 1[st] defendant set up a plea of forgery.

37. 1[st] defendant was examined as DW.1 wherein shecategorically denied the execution of Ex.A-1 and in her examination-in-chief, she disclosed about the mortgage in favour of brother of PW.1by name Pendyala Lakshminarayana for Rs.6,000/-, but the mortgagedeed was obtained for Rs.12,000/-, expressed her inability to discloseother details of mortgage. Ex.A-2 is the certified copy of judgment inOriginal Suit No.241 of 1986 filed by Pendyala Lakshminarayana forpassing preliminary decree based on the mortgage. She denied thealleged offer made by her to sell the schedule property and executionof Ex.A-1 agreement of sale on receipt of Rs.49,000/- as advance ofsale consideration. In the cross-examination, an attempt was made toprove the signature of husband of DW.1 as one of the attestors onEx.A-1, but the learned counsel for the plaintiff could elicit nothing toestablish that PW.5 signed as one of the attestors of Ex.A-1. She alsodenied the agreement allegedly executed in favour of 2[nd] defendantwhile contending that original sale deed was taken by Subba Rao atthe time of execution of mortgage deed. The entire evidence of DW.1shows that Ex.A-1 was not executed by her and nothing was elicited insupport of the contention of the plaintiff, more particularly, to establishexecution of Ex.A-1.

38. The 2[nd] defendant was examined as DW.2 but his evidence isnot useful to prove the plea of the plaintiff or the 1[st] defendant and,hence, there is no necessity to advert to his evidence to decide the real

controversy between the parties, since his suit was dismissed.Similarly, the evidence of DWs.3 to 5, the scribe and attestors of Ex.B-2, allegedly executed by 1[st] defendant in favour of 2[nd] defendant andtheir evidence is not relevant for deciding the real controversy betweenthe parties.

39. Discerning entire material available on record, there is someevidence on record to prove the execution of Ex.A-1, but the trial Courtdisbelieved the plaintiff's case on the ground that all the witnesses areclosely related to one another

40. At the same time, on the agreement, the learned counsel for the1[st] defendant pointed out the space between the lines in Ex.A-1 bothfirst and second pages and the variations in signatures of theexecutant Nimmagadda Rajyalakshmi i.e., 1[st] defendant, both on firstand second pages, thereby, the Court can compare the disputedsignatures with the admitted signatures and decide the genuineness ofexecution of Ex.A-1. In fact, in the grounds of appeal, in ground No.9,it is contended by the plaintiff-appellant that the Court has failed toexercise its power under Section 73 of the Indian Evidence Act tocompare the disputed signatures on Ex.A-1 with the admittedsignatures on Ex.A-3, but the trial Court disowned its responsibility ofcomparing signatures on the disputed document with the admittedsignatures of 1[st] defendant. It is further contended in the grounds ofappeal that it is the duty of the 1[st] defendant to refer disputedsignatures to the handwriting expert calling for opinion when she setupa specific plea of forgery, but this ground would not stand to any legalscrutiny for the reason that when the plaintiff approached the Courtseeking the relief of specific performance, based on Ex.A-1, it is for herto establish that Ex.A-1 is true, valid and genuine. Thus, the initialonus of proof is on the plaintiff to establish the genuineness of Ex.A-1. In the process of proving genuineness of Ex.A-1, the plaintiff examined the attestors, scribe as witnesses on her behalf as it is a recognizedmode of proof of the document.

41. According to settled law, a document can be proved by different modes as held by the Apex Court in State (Delhi Administration) Vs.

Pali Ram[[5]], wherein in Para No.23 it was ruled as follows:

“Just as in English Law, the Indian Evidence Act recognisestwo direct methods of proving the handwriting of a person:

(1) By an admission of the person whowrote it.

(2) By the evidence of some witness whosaw it written.

These are the best methods of proof.

These apart, there are three other modes ofproof by opinion. They are :

(i) By the evidence of a handwritingexpert. (Sec. 45)

(ii) By the evidence of a witnessacquainted with the handwriting of theperson who is said to have written thewriting in question. (Sec. 47); and

(iii) Opinion formed by the Court oncomparison made by itself. (Sec. 73)

All these three cognate modes of proof involve aprocess of comparison. In mode No.(i), the comparison ismade by the expert of the disputed writing with the admitted orproved writing of the person who is said to have written thequestioned document. In (ii), the comparison takes the form ofa belief which the witness entertains upon comparing thewriting in question, with an exemplar formed in his mind fromsome previous knowledge or repetitive observance of thehandwriting of the person concerned. In the case of (iii), thecomparison is made by the Court with the sample writing orexemplar obtained by it from the person concerned.”

42. In view of the principles laid down by the Apex Court in PaliRam[5], the burden is upon the plaintiff to prove execution of Ex.A-1,agreement of sale, allegedly executed by the 1[st] defendant in herfavour and to discharge her initial onus of proof, she opted second

method of proof i.e., by the evidence of some witnesses who saw itwritten, but their testimony is not credible for the reasons stated in theearlier paragraphs and due to their close relationship with oneanother. When the plaintiff wanted to obtain a document, she can get itscribed by any available person instead of calling a person from adistance of two furlongs or two miles, who is running his medical shopbusiness during peak hours, and she can call for any independentattestors who were present near the place of execution of Ex.A-1, butthe plaintiff has chosen her kith and kin to attest the document andscribe the same so as to strengthen the disputed transaction; perhapsshe might have anticipated that if any third party is introduced in theprocess of execution of Ex.A-1 they may not speak in her favour.Therefore, the way in which Ex.A-1 was allegedly executed createsany amount of suspicion and the plaintiff did not take steps to refer thedisputed signatures to the handwriting expert, calling for opinion, asthe burden is upon her to establish the execution of Ex.A-1, but thecontention that it is for the 1[st] defendant to refer the document foropinion of handwriting expert is without any legal basis.

43. Leave alone the admissions made by third parties to prove ordisprove execution of Ex.A-1, still the Court can exercise its powerunder Section 73 of the Indian Evidence Act to compare the disputedsignatures with the admitted signatures to form an opinion. Generally,the handwriting of a person depends upon qualification, physicalstrength and mind of an individual. If for any reason, a person becomessick mentally or physically, there might be some variation in hissignature, but here, there was no such contingency and it is nobody'scase. In normal course of events, the natural variation andchangeability complicates the comparison and, therefore, forcomparison, the expert has to take care of the natural characteristics inthe disputed signature and questioned signature, which are describedas follows:

(a) Those pertaining to the act itself like movementand its qualities. Since handwriting is produced by aseries of movements, it is more fundamental thanany other characteristics.

(b) Those of style such as slant, roundness,angularity.

(c) Those of form and formulations and theirinconspicuous details, such as, beginnings,endings, curves, angles, etc.

(d) Those pertaining to the writing as a whole, suchas, arrangement, spacing, alignment, margins,paragraphing and punctuation.

(e) Qualities like still, symmetry, fixity and artisticquality.

(f) Natural variation-its range.

(g) General appearances or pictorial effect.

44. In view of the guidelines referred supra, it is for the Courts totake into consideration those aspects while comparing the disputedsignatures with the admitted signatures. Undoubtedly, power isconferred on the Courts to compare the disputed signatures with theadmitted signatures under Section 73 of the Indian Evidence Act, butsuch power has to be exercised sparingly, what are the circumstancesin which such power can be exercised are not laid down in any of thelaw declared either by the Apex Court or this Court, but it varies fromcase to case. In the present case, the parties to the suit did not takeany steps to refer the disputed signatures on Ex.A-1 along withadmitted signatures of 1[st] defendant on Ex.A-3 for comparison of anyhandwriting expert and opinion.

45. Thus, when either party did not take steps to refer the disputedsignatures, the Court can exercise its power conferred under Section 73 of the Indian Evidence Act to come to a right conclusion, as it is oneof the modes of proof of execution of Ex.A-1, as held by the Apex Courtin Pali Ram[5].

46. The learned counsel for the 1[st] defendant-respondent duringcourse of argument pointed out several dissimilarities in the signaturesof the executant appearing on page Nos.1 and 2 of Ex.A-1, its size,style of writing letters, beginnings and termination of strokes, spaceetc., A bare look at the signatures of the executant on first and secondpages of Ex.A-1, it is clear that the size of letters in the signatureon the first page are smaller than the letters on the second page.Similarly, beginning of the letter 'mi', the 1[st] letter in the signature andits termination is totally different; likewise there is lot of difference incommencement and termination in most of the letters appearing in thesignature on Ex.A-1, 1[st] and 2[nd] pages, however, these two signaturesare disputed signatures. The only admitted signatures available onrecord are the signatures on the written statement filed by the 1[st]defendant and on her deposition recorded by the trial Court. On thelast page of written statement dated 01.10.1986 the 1[st] defendantsigned at two places. Similarly, on the deposition, she signed on thefirst page twice, second page once, third page twice and last pageonce, but there is lot of variance among the signatures on the writtenstatement and on the deposition recorded on various dates, moreparticularly, size of the letters, length of the signature, so alsobeginning and termination of letters and space between the letters.Therefore, it is evident from the signatures of DW.1 on the writtenstatement and on her deposition; she changed her signature from timeto time perhaps due to her illiteracy. The style of signature of DW.1, atvarious places, pointed out in earlier lines clearly indicates that she isan illiterate and not in the habit of signing regularly on any document. In those circumstances, the variations pointed out between thesignatures appearing on page Nos.1 and 2 of Ex.A-1 are not uncommon. By applying the various considerations referred in theearlier paragraphs to the present facts of the case, it is difficult for thisCourt to come to an independent conclusion based on the admittedsignatures comparing them with the disputed signatures. Hence, thetrial Court did not exercise its power under Section 73 of the IndianEvidence Act in view of the principle laid down by the Bombay HighCourt in Ramkrishan Ganpat Futane and Others Vs.Mohammad Kasam and Others[[6]].

47. However, the principle laid down by the Bombay High Court inRamkrishan Ganpat[6] cannot be applied to this case for the reasonthat the Court is competent to compare the signatures under Section73 of the Evidence Act, but cannot come to a conclusion withoutproper comparison as held by the Apex Court in Thiruvengada Pillai Vs. Navaneethammal and others[[7]], wherein it was ruled as follows:

“Comparison of disputed thumb impressions with admittedthumb impressions based on principle under Section 73 of theIndian Evidence Act is permissible in a suit for specificperformance and that the court should avoid reachingconclusions based on a mere casual or routine glance orperusal”

48. In view of the principle laid down by the Apex Court in Thiruvengada Pillai[7], the Court must scrutinize the disputedsignatures and admitted signatures for comparison to come to anindependent conclusion, carefully, by exercising power under Section73 of the Evidence Act, but on a casual or routine approach, it isdifficult to hold whether any document is a genuine one or not.

49. In another judgment of this Court in G. Narayanappa Vs. Smt.

Ganne Lakshmamma and nine others[[8]], this Court is of the viewthat signatures of the executant of a Will compared with the signatures

on other letters for ascertaining that the genuineness of the Will,exercising power under Section 73 of the Indian Evidence Act withanother proved or admitted signatures of the person can be done.

50. In another judgment of this Court in Bhupathiraju Ravi Kumar Vs. Paluri Surya Prakasa Rao[[9]](died), it was held as follows:

“No reason of contemporaneous signatures for the purpose ofcomparison is valuable and the trial court had not comparedthe signatures of the appellant in his written statement,vakalat, and the suit summons with that of Ex.A-1, when noother documents containing the signature of the 1st appellantare available on record. More over the respondent takensteps to send the document to an expert for comparison ofdisputed signatures with the admitted signatures on thepremise that no two genuine signatures can be identical asperson cannot make two signatures exactly alike in alldetails.”

51. However, in the earlier judgment of the Apex Court in Lalit Popli Vs. Canara Bank and others[[10]], similar question came up forconsideration before the Apex Court, wherein it was held as follows:

“Irrespective of an opinion of the Handwriting Expert, theCourt can compare the admitted writing with disputed writingand come to its own independent conclusion. Such exerciseof comparison is permissible under Section 73 of theEvidence Act. Ordinarily, Sections 45 and 73 arecomplementary to each other. Evidence of HandwritingExpert need not be invariably corroborated. It is for the Courtto decide whether to accept such an uncorroborated evidenceor not. It is clear that even when experts' evidence is notthere, the Court has power to compare the writings anddecide the matter.”

52. In view of the settled principle of law referred supra, there is nobar against exercising power under Section 73 of the Indian EvidenceAct on the Courts to compare the disputed signatures with admittedsignatures, but still it is hazardous to make such an attempt to decidethe genuineness of a document, more particularly, when the person who executed the document is an illiterate and evidently changing hersignatures from time to time and place to place. In thosecircumstances, I am afraid to exercise power under Section 73 of theIndian Evidence Act to decide the genuineness of disputed signatureson Ex.A-1.

53. Yet, another contention of the learned counsel for 1[st]defendant-respondent is that the space between lines and signatureson the first page before completion of the running matter of Ex.A-1creates any amount of suspicion about signing on the document. Undoubtedly, the size of letters and space between the lines at thebeginning of the document and at the end of the 1[st] page of thedocument is totally different and size of the letters and space betweenlines is reduced. Further, even after the signature, the writing of thedocument was continued. Similarly, in the 2[nd] page of the document,there is lot of space between the signature and written matter andsignatures of the attestors, which also creates also any amount ofsuspicion. At best, those variations pointed out by the learned counselfor the 1[st] defendant-respondent may be relevant, if the plea of the 1[st]defendant is that the document is fabricated with the aid of the signedblank stamp papers, but, it was not the case of the 1[st] defendant at anystage of the suit. In those circumstances, the variation in the size of theletters and space between the lines is irrelevant.

54. When this Court is unable to exercise power conferred underSection 73 of the Indian Evidence Act, still it is the bounden duty of theplaintiff-appellant to establish the genuineness of signatures on Ex.A-1, but, as discussed above, I find no independent evidencecorroborating the evidence of PW.1, who allegedly obtained thedocument from the 1[st] defendant. Thus, except the self servingtestimony of PW.1, her son, nephew and other close relatives, who areinterested in the litigation, no other material is available. Therefore,basing on the interested testimony of PWs.1 to 5, the trial Court rightly disbelieved the execution of Ex.A-1 and concluded that Ex.A-1 is notthe genuine document.

55. Though the learned counsel for the plaintiff-appellant contendthat the Court can compare the disputed signatures with the admittedsignatures of the executant of Ex.A-1, no specific material is brought tothe notice of this Court to arrive at a different conclusion than theconclusion arrived by the trial Court. The trial Court already pointed outseveral improbable circumstances which led the trial Court todisbelieve the execution of Ex.A-1, but one of the circumstances is thatthe plaintiff would have taken assistance of a skilled document writer,but that is not a legal ground to disbelieve the execution of Ex.A-1.However, the evidence on record is insufficient to believe theexecution of Ex.A-1 by 1[st] defendant. Thus, the plaintiff miserablyfailed to establish the execution of Ex.A-1 agreeing to sell the propertyby 1[st] defendant. Hence, Ex.A-1 is not enforceable under law;consequently, no decree can be passed on the strength of Ex.A-1, forgrant of specific performance. After discerning entire material availableon record, I find no iota of legal infirmity in the finding of the trial Court. Hence, the finding of the trial Court is hereby confirmed holding thispoint against the plaintiff-appellant and in favour of the 1[st] defendant-respondent.

56. POINT No.2: Admittedly, the suit is filed for specificperformance of agreement of sale contending that the plaintiff isalways ready and willing to perform her part of obligation underagreement of sale. Assuming for a moment that if Ex.A-1 is true, still itis obligatory on the part of the plaintiff to plead and prove herreadiness and willingness strictly complying Section 16(c) of theSpecific Relief Act. Time and again the Apex Court held that thecompliance of Section 16(c) of Specific Relief Act is mandatory. Froma bare look at the contents of E.A-1, it is clear that it was allegedlyexecuted on 19.12.1985 for Rs.70,000/- and allegedly paid Rs.49,000/- on the same day while agreeing to pay balance of saleconsideration of Rs.21,000/- within 15 months i.e., on or before19.03.1987, but the present suit was filed on 21.03.1986 almost oneyear before the time fixed for payment of balance of sale considerationto obtain registered sale deed. One of the contentions of PW.1 is thatshe is always ready and willing to perform her part of obligation underthe contract and testified in the same lines in her evidence. Yet, fromthe evidence of PW.4 in his examination-in-chief, it is clear that by thedate of agreement, the plaintiff was having entire sale consideration,but registered sale deed was not obtained as the possession of thehouse could not be given to her till the 1[st] defendant securedalternative house, therefore, the execution of registered sale deed waspostponed. This part of evidence of PW.4, who is no other than son ofPW.1, shows that PW.1 possessed money for payment of balance ofsale consideration on the date of execution of Ex.A-1. If that is thecase, nothing prevented the plaintiff from obtaining registered saledeed on the date of execution of Ex.A-1 itself and the cause for notobtaining the registered sale deed on the date of execution of Ex.A-1was not pleaded in the plaint and not mentioned in Ex.A-1. If really,she is in possession of balance of sale consideration, she would haveobtained registered sale deed on the date of execution of Ex.A-1 itself.Failure to obtain registered sale deed at the time of obtaining Ex.A-1itself indicates that she was not in possession of the balance of saleconsideration on the date of execution of Ex.A-1. In fact, the 1[st]defendant disputed the capacity of the plaintiff to purchase the propertyby paying alleged advance of Rs.49,000/- on the date of execution ofEx.A-1, but PW.1 invented a theory of sale investing the amount infinancing business and earning huge amount on the finance businesswhich is not supported by any other evidence. Therefore, the capacityof the plaintiff to pay Rs.49,000/- on the date of Ex.A-1 itself is highlydoubtful in the absence of proof of her source of income to pay hugeamount of Rs.49,000/- during those days.

57. One of the major contentions raised by the learned counsel forthe 1[st] defendant-respondent is that issuance of prior noticedemanding the 1[st] defendant to execute registered sale deed, asrequired under Form Nos.47 and 48 of Appendix-A of Civil ProcedureCode, which is mandatory. In fact, the plaintiff did not demand byissuing any notice in Form Nos.47 and 48 of Appendix-A of CivilProcedure Code prior to institution of the suit, but only explanationoffered by the plaintiff is that the husband of 1[st] defendant openlydeclared that she would not execute registered sale deed even if theplaintiff approaches the Court and they are going to alienate theproperty in favour of third parties. In fact, a specific plea was raised inthe plaint itself about the alleged proclamation made by the 1[st]defendant's husband in Para No.8; whereas, her examination-in-chiefdisclosed that as the 1[st] defendant was trying to alienate the propertyto others and when she enquired, the 1[st] defendant stated that theproperty can be dealt by her, as she wish, as she did not executeregistered sale deed as demanded by PW.1, she filed the suit. Theevidence of PW.1 with regard to declaration made by husband of 1[st]defendant was not spoken by PW.1, but invented a different theory of1[st] defendant herself declaring that she will sell the property. Theevidence and plea of the witnesses examined on behalf of the plaintiffare not consistent with one another and the explanation offered by theplaintiff for her failure to issue notice before institution of the suit, asrequired under Form Nos.47 and 48 of Appendix-A of C.P.C., cannotbe accepted. The evidence of other witnesses is totally silent withregard to the reason for her failure to issue notice prior to filing of thesuit. Undoubtedly, the issue of notice depends upon thecircumstances of each case as held by this Court in Baddam Prathap Reddy vs. Chennadi Jalapathi Reddy[[11]]. If the circumstances ofthe present case are taken into consideration, more particularly, when the plaintiff is in possession of money to pay balance saleconsideration and failure to obtain registered sale deed, noneprevented her to issue prior notice demanding execution of registeredsale deed, receiving balance of sale consideration, since the specificreason assigned for her failure is not satisfactory. The Apex Court timeand again held that issue of demand in Form Nos.47 and 48 ofAppendix-A of C.P.C. is mandatory in view of the principle laid down by it in Syed Dastagir Vs. T. R. Gopalakrishnasetty[[12]],Pushparani

S. Sundaram Vs. Pauline Manomani James[[13]]and in Alamgir Vs.State (NCT of Delhi). If the principle laid down in the judgmentsreferred supra is applied to the present facts of the case, when theevidence of PW.1 is inconsistent with the plea set up in Para No.8 ofthe plaint, explaining the reason for her failure to issue prior notice asrequired under Form Nos.47 and 48 of Appendix-A of C.P.C., it cansafely be concluded that the suit for specific performance is notmaintainable only on the sole ground that non compliance ofmandatory required under Form Nos.47 and 48 of Appendix-A ofC.P.C. Hence, taking into consideration the facts and circumstances,the trial Court disbelieved the explanation of PW.1 for her failure tocomply Form Nos.47 and 48 of Appendix-A of C.P.C. whiledisbelieving the reason pleaded in Para No.8 of the plaint, I hold thatfailure to issue notice in compliance of Form Nos.47 and 48 ofAppendix-A of C.P.C. disentitled the plaintiff to claim the relief ofspecific performance in view of the settled law referred supra. Hence,failure to comply Form Nos.47 and 48 of Appendix-A of C.P.C., directlyestablished that the plaintiff was not ready and willing to perform herpart of obligation under the agreement of sale.

58. One of the contentions of learned counsel for the plaintiff-appellant is that when the trial Court did not advert to such plea, it isnot proper to consider such plea by this Court in this appeal. No doubt,

the trial Court did not advert to such plea, for different reasons;however, in the written statement filed by 1[st] defendant, shespecifically raised a plea in Para No.8 that no notice was issued. Whenspecific plea is raised in the written statement, disputing the right of theplaintiff to claim specific performance, this Court being the court of firstappeal exercising power under Order 41 Rule 33 of C.P.C. can recordits findings. Mere failure of the trial Court to advert to such plea wouldnot enure any benefit to the plaintiff. Therefore, the contention of theplaintiff-appellant that this Court cannot advert to such plea and recordfinding is not sustainable.

59. Viewed from any angle, it is evident that the plaintiff filed the suiteven before the expiry of period fixed for payment of balance amounti.e., 21.03.1987, but the suit is filed on 21.03.1986 itself i.e., almost oneyear before expiry of the time fixed for payment, even without issuingany notice in compliance of procedure contemplated under FormNos.47 and 48 of Appendix-A of C.P.C. Hence, I hold that failure tomake a demand prior to filing of the suit disentitled the plaintiff to claimthe relief for specific performance holding this point in favour of the 1[st]defendant-respondent and against plaintiff-appellant.

60. POINT No.3: The plaintiff, who claimed the relief of specificperformance, failed to establish due execution of Ex.A-1, in view of myfinding on point No.1, and also failed to establish the circumstanceswhich led her to file the suit without complying Form Nos.47 and 48 ofAppendix-A of C.P.C. Though compliance is mandatory in view of theprinciple laid down by the Apex Court in the judgments referred supra,but she approached the Court with unclean hands claiming anequitable relief of specific performance, this Court is not bound to grantsuch relief of specific performance as it is purely discretionary in naturein view of Section 20 of the Specific Relief Act.

61. The Apex Court in Lourdu Mari David and Others Vs. Louis Chinnaya Arogiaswamy and others[[14]]ruled as follows:

“It is settled law that the party who seeks to avail of theequitable jurisdiction of a Court and specific performancebeing equitable relief, must come to the Court with cleanhands. In other words the party who makes false allegationsdoes not came with clean hands and is not entitled to theequitable relief.”

62. In another judgment of the Apex Court in G. Jayashree Vs.

Bhagwandas S. Patel and others[[15]], it was held as follows:

“When the plaintiff did not choose to file a suit for specificperformance of contract at the first instance speaks volumesabout his conduct. However, the civil courts, in the matter ofenforcement of an agreement to sell, exercise a discretionaryjurisdiction. A plaintiff is expected to approach the court withclean hands and his conduct plays an important role in thematter of exercise of discretionary jurisdiction by a court oflaw.”

63. In Nirmala Anand Vs. Advent Corporation (P) Ltd., andothers[[16]], the Apex Court in Para No.6 ruled as follows:

“It is true that grant of decree of specific performance lies inthe discretion of the court and it is also well settled that it is notalways necessary to grant specific performance simply forthe reason that it is legal to do so. It is further well settled thatthe court in its discretion can impose any reasonablecondition including payment of an additional amount etc.,”

64. Thus, from the settled legal position referred supra, it is clearthat the suit for specific performance shall be filed within reasonabletime and the plaintiff has to approach the Court with clean hands.When once the 1[st] defendant sold the property for discharging thedebts vide Ex.A-1, when the 1[st] defendant suffered the mortgagedecree, from time to time, the interest is being accrued on the mortgagedecree obtained by Pendyala Lakshminarayana marked as Ex.B-2, insuch case, if really, the property is sold, the 1[st] defendant would have received balance of sale consideration and executed a sale deed soas to enable her to discharge the due debts including the mortgagedebt due to Pendyala Lakshminarayana, father of PW.2, and failure topay or deposit balance of sale consideration and dragging the matterfor years together also indicates that the plaintiff with a view to avoidpayment of balance of sale consideration filed the suit. Thus, whenonce the 1[st] defendant allegedly sold the property for her benefit, theplaintiff cannot be made to wait for years together to perform her part ofcontract in receiving balance of sale consideration and executeregistered sale deed. This is another strong reason to disbelieve thecase of plaintiff to exercise discretion under Section 20 of the SpecificRelief Act, to grant a decree for specific performance, since the plaintiffdid not approach the Court with clean hands. Therefore, I find noground to exercise discretion under Section 20 of the Specific ReliefAct to grant a decree of specific performance, in view of the peculiarfacts and circumstances of the case.

65. The plaintiff also claimed the relief of permanent injunctionrestraining the 1[st] defendant and her legal heirs from alienating theproperty. The plaintiff did not claim consequential permanentinjunction, but claimed a perpetual injunction independently from theprimary relief of specific performance. When the plaintiff is found notentitled to the claim of the relief of specific performance, the plaintiff isnot entitled to the relief of perpetual injunction under Section 38 of theSpecific Relief Act, for the reason that the agreement of sale would notconfer any interest or right in immovable property under Section 54 ofTransfer of Property Act, 1882. As long as the title is continued withthe 1[st] defendant, she is entitled to deal with the property, as per herwish, subject to the rights of third parties, if any, created under anycontract. Thus, as on today, the plaintiff had no right or interest in theproperty. Thereby, the 1[st] defendant and her heirs cannot berestrained from alienating the property under Section 38 of the Specific Relief Act. Hence, I hold that the plaintiff is not entitled to a decree ofpermanent injunction or perpetual injunction under Section 38 of theSpecific Relief Act. Accordingly, the point is answered against theplaintiff and in favour of the 1[st] defendant.

66. In view of my findings on point Nos.1 to 3, I find no ground tointerfere with the finding of the trial Court as the appeal is devoid ofmerits.

In the result, the Appeal Suit is dismissed confirming the decreeand judgment dated 03.02.1994, passed in Original Suit No.6 of 1986by the learned Subordinate Judge, Kavali, Nellore District.

In consequence, miscellaneous petitions, if any, pending in thisAppeal, shall stand dismissed. No order as to costs.

_____________________________

M. SATYANARAYANA MURTHY,J

Date: 30-12-2014.Dsh

HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

252

APPEAL SUIT No. 1744 OF 1995

DSH20012015

Date. 30-12-2014

[1](2010) 2 SCC 114

[2]AIR 2012 SC 2010

[3]1991 (Supp) (1) SCC 271

[4]2010 (10) SCC 677

[5]AIR 1979 SC 14

[6]AIR 1973 Bombay 242

[7]AIR 2008 SC 1541

[8]2002 (1) AnWR 269

[9]2009 (3) ALD 405

[10]AIR 2003 SC 1796

[11]2008 (5) ALT 192

[12]2002 (9) SCC 582

[13]2003 (Crl.L.J.) 356

[14]AIR 1996 SC 2814

[15]2009 (3) SCC 1412009 (3) SCC 141

[16]2002 (Supp) (2) SCR 7062002 (Supp) (2) SCR 706