VENIGALLA KOTESWARAMMA v. MALEMPATI SURYAMBA & ORS.

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& ORS. [DINESH MAHESHWARI, J.]

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. xxx xxx xxx “11.Application of Order to appeals.–In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.”

42Copy pinpoint42. For determining if Rule 2 of Order XXII could apply, we have to examine if right to sue survived against the surviving respondents. It is not the case that no legal heirs were available for defendant 2. It is also not the case where the estate of the deceased defendant 2 passed on to the remaining parties by survivorship or otherwise. Therefore, applicability of Rule 2 of Order XXII CPC is clearly ruled out. 42.1. Admittedly, steps were not taken for substitution of the legal representatives of defendant 2, who was respondent 3 in AS No. 1887 D of 1988. Therefore, sub-rule (3) of Rule 4 of Order XXII of the Code directly came into operation and the said appeal filed by defendants 16 to 18 abated against defendant 2 (respondent 3 therein). We may profitably recapitulate at this juncture that in fact, the other appeal filed by defendants 4, 13 and 14 (AS No. 1433of 1989) was specifically dismissed by the High Court as against the deceased defendant 2 on 25.04.2006.

43Copy pinpoint43. Once it is found that the appeal filed by defendants 16 to 18 abated as against defendant 2 (respondent 3), the question arises as to whether that appeal could have proceeded against the surviving respondents i.e., the plaintiff and defendants 1 and 3 (who were respondents 1, 2 and 4). For dealing with this question, we may usefully refer to the relevant principles, concerning the effect of abatement of appeal against one respondent in case of multiple respondents, as enunciated and explained by this Court. G 43.1. The relevant principles were stated and explained in-depth by this Court in the case of State of Punjab v. Nathu Ram: AIR 1962 SC 89. In that case, the Punjab Government had acquired certain pieces of land belonging to two brothers jointly. Upon their refusal to accept the compensation offered, their joint claim was referred to arbitration and H

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A an award was passed in their favour that was challenged by the State Government in appeal before the High Court. During pendency of appeal, one of the brothers died but no application was filed within time to bring on record his legal representatives. The High Court dismissed the appeal while observing that it had abated against the deceased brother and consequently, abated against the surviving brother too.The order so passed by the High Court was questioned before this Court in appeal by certificate of fitness.While dismissing the appeal and affirming the views of High Court, this Court enunciated the principles concerning the effect of abatement and explained as to why, in case of joint and indivisible decree, the appeal against the surviving respondent(s) cannot be proceeded with and has to be dismissed as a result of its abatement against the deceased respondent; the basic reason being that in the absence of the legal representatives of deceased respondent, the appellate Court cannot determine between the appellant and the legal representatives anything which may affect the rights of the legal representatives. This Court pointed out that by abatement of appeal qua the deceased respondent, the decree between appellant and the deceased respondent becomes final and the appellate Court cannot, in any way modify that decree, directly or indirectly. The Court observed in that case, inter alia, as under: “4. It is not disputed that in view of Order 22 Rule 4 Civil Procedure E Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The Code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been, consequently, divergence of opinion in the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22 Rule 4 does not provide for the abatement of the appeals against the co- respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in

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& ORS. [DINESH MAHESHWARI, J.]

certain circumstances and have therefore to be dismissed. Such A a result depends on the nature of the relief sought in the appeal.

5. The same conclusion is to be drawn from the provisions of Order 1 Rule 9 of the Code which provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.

6. The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with the court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms courts will not proceed with an appeal (a) when the success of the appeal may lead to the court’s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. H *** *** ***

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A 8. The difficulty arises always when there is a joint decree. Here again, the consensus of opinion is that if the decree is joint and indivisible, the appeal against the other respondents also will not be proceeded with and will have to be dismissed as a result of the abatement of the appeal against the deceased respondent. Different views exist in the case of joint decrees in favour of respondents whose rights in the subject-matter of the decree are specified. One view is that in such cases, the abatement of the appeal against the deceased respondent will have the result of making the decree affecting his specific interest to be final and that the decree against the other respondents can be suitably dealt with by the appellate court. We do not consider this view correct. The specification of shares or of interest of the deceased respondent does not affect the nature of the decree and the capacity of the joint decree-holder to execute the entire decree or to resist the attempt of the other party to interfere with the joint right decreed in his favour. The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.” F (emphasis in bold supplied) 43.2. In this discussion, it shall also be appropriate to take note of the Constitution Bench decision of this Court in the case of Sardar Amarjit Singh Kalra (dead) by LRs. and Ors. v. Pramod Gupta G (Smt) (dead) by LRs. and Ors.: (2003) 3 SCC 272. The matter therein arose out of the proceedings under the Land Acquisition Act, 1894 where different proprietors had different claims concerning their respective land but joined together in appeals against the orders passed in reference proceedings. Some of the appellants expired and no steps were taken within time for bringing on record their respective legal representatives H

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& ORS. [DINESH MAHESHWARI, J.]

but at some later stage, applications were filed by the heirs of the deceased parties for bringing them on record as legal representatives. The applications for condonation of the delay in seeking to set aside the abatement were, however, rejected. The submission of remaining appellants that the appeals abated partially and qua the deceased appellants only was not accepted by the High Court. The said decision of the High Court was not approved by the Constitution Bench of this Court, essentially after finding that the award/decrees which were subject matter of challenge before the High Court were not joint or inseparable but in substance, a mere combination of several decrees depending upon the number of claimants and, therefore, joint and several or separable vis-à-vis the individuals or their claims. Although the appeals were restored for reconsideration of the High Court but, in the process, the Constitution Bench surveyed the relevant case-law including the aforesaid decision in Nathu Ram’s case and laid down the principles for dealing with such matters; and therein, also underscored the consideration about inconsistent decrees coming into operation in case of proceeding with the appeal even after its abatement qua one of the respondents. The enunciations of the Constitution Bench could be usefully noticed as follows:- “34. In the light of the above discussion, we hold: (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them. (2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees. H

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A (3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. B (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.” (emphasis in bold supplied) E 43.3. The principles aforesaid have been duly applied by this Court in the case of Hemareddi (dead) Through Legal Representatives v. Ramachandra Yallappa Hosmani & Ors.: (2019) 6 SCC 756. In that case, one Govindareddi died, leaving behind two sons Shriram Reddy and Basavareddi and a daughter. Two sons of Shriram Reddy filed a F civil suit with respect to the property in question on the ground that the said property was a joint family property belonging to them. In that suit, the plaintiffs impleaded the wife of Basavareddi as defendant 2 and challenged the adoption of defendant 1 by her. The suit was dismissed by the Trial Court, while upholding the adoption of defendant 1. The plaintiff-brothers appealed against the said decree of Trial Court. During G pendency of that appeal, one of the appellants expired but his legal representatives were not brought on record and, consequently, the appeal abated qua the deceased appellant. The High Court took the view that having regard to the decree passed, the appeal would abate not only qua the deceased appellant but as a whole. This Court affirmed the view of H the High Court while observing that looking to the facts of case and

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& ORS. [DINESH MAHESHWARI, J.]

nature of decree of the Trial Court, any decree passed in favour of the surviving appellant would be inconsistent with the decree that had attained finality between the deceased appellant and the defendants. With reference to likelihood of inconsistent decrees, this Court also rejected the contention that permission to prosecute the appeal was granted by the Court and hence it may be proceeded with. After a survey of the relevant case-law, this Court said, inter alia, as under:- “32.The decree, which the appellant, if successful in the appeal, would obtain, would be absolutely contrary to the decree which has also attained finality between his late brother and the defendants. They are mutually irreconcilable, totally inconsistent. Laying one side by side, the only impression would be that one is in the teeth of the other. In one, the suit is dismissed whereas in the other, the suit would have been decreed.

33. The argument that in view of the order passed on 10-9-2001 by which despite the death of late brother of the appellant, permission to prosecute the appeal was granted by the court there would arise an estoppel against the order being passed holding that the appeal has abated as a whole, cannot be accepted. The impact of death of the late brother of the appellant qua the proceeding is one arising out of the incompatibility of a E decree which has become final with the decree which the appellant invites the appellate court to pass. In such circumstances, the mere fact that the appellant was permitted to prosecute the appeal by an interlocutory order would not be sufficient to tide over the legal obstacle posed by the inconsistent decree which emerges as a result of the failure to substitute legal F representative of the late brother and the abating of the appeal filed by his late brother. Consequently, we see no merit in the appeal. It is accordingly dismissed.” (emphasis in bold supplied) G

44Copy pinpoint44. In the present case, it remains rather indisputable that the appeal in the High Court by defendants 16 to 18 (AS No. 1887 of 1988), abated against defendant 2 Malempati Radhakrishnamurthy (who was respondent 3 in appeal). When we apply the principles aforesaid to the present case, it is not far to seek that the said appeal by defendants 16 to H

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A 18, after having abated against defendant 2 Malempati Radhakrishnamurthy, could not have been proceeded against the surviving respondents i.e., the plaintiff and defendants 1 and 3. This is for the simple reason that the Trial Court had specifically returned the findings that the agreement Ex. B-10 was not valid and defendants 16 to 18 (appellants of AS 1887 of 1988) derived no rights thereunder. The Trial B Court had also ordered that the defendants 13, 14 and 16 were liable for mesne profits in respect of the immoveable properties in their possession belonging to Annapurnamma till they deliver possession of those items to plaintiff and defendants 1 to 3. Such findings in relation to the invalidity of the agreement Ex. B-10 and consequential decree for partition, for delivery of possession and for recovery of mesne profits attained finality qua defendant 2 Malempati Radhakrishnamurthy; and his entitlement to one-fourth share in the suit properties (including the property covered by Ex. B-10) also became final when the appeal filed by defendants 16 to 18 abated qua him. If at all the appeal was proceeded with and the alleged agreement Ex. B-10 was upheld (which the High Court has indeed done), inconsistent decrees were bound to come in existence, and have in fact come in existence. 44.1. As noticed, the High Court has proceeded to hold that Ex. B-10 agreement is valid and binding on plaintiff and defendants 1 to 3. This part of decree is in stark contrast, and is irreconcilable, with the decree in favour of defendant 2 which has attained finality that the said agreement Ex. B-10 is neither valid nor binding on defendant 2. The High Court has gone a step further to say that the plaintiff and defendants 1 to 3 were under obligation to execute sale deed in favour of defendants 16 to 18. Though making of such an observation in this suit, that heirs of F Annapurnamma were under obligation to execute a sale deed in favour of defendant 16 to 18, remains seriously questionable in itself but, in any event, this observation could not have been made qua the deceased defendant 2.

45Copy pinpoint45. When the inconsistencies galore are writ large on the face of the record, the inescapable conclusion is that the appeal filed by defendants 16 to 18 could not have proceeded further after its abatement against defendant 2 (respondent 3).

46Copy pinpoint46. The submissions made by learned counsel for contesting respondents to save their appeal before the High Court have their own failings. Applicability of Order XXII Rule 2 CPC is clearly ruled out in

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& ORS. [DINESH MAHESHWARI, J.]

this matter relating to the suit for partition where decree had already been passed in favour of the plaintiff as also defendants 1 to 3. The appeal by defendants 16 to 18 against such co-sharers of the property could not have proceeded in the absence of representation of the estate of one of the co-sharers. 46.1. The other submission, that the question of maintainability of the suit, being primarily directed against the plaintiff, could save the appeal in the High Court, is bereft of any logic. We have already indicated that the question of maintainability is itself meritless. In any case, even this question could not have been raised in the absence of legal representatives of defendant 2 because such a question of maintainability of a suit for partition is directed not only against the plaintiff but also against the other co-sharers, particularly when they had filed the written submissions of admission and, for all practical purposes, were standing in the capacity of plaintiff seeking partition. 46.2. Even the suggestion that the factum of death of defendant 2 was not stated before the High Court turns out to be rather incorrect because it is noticed that the other appeal filed by defendants 4, 13 and 14 (AS No. 1433 of 1989) was dismissed against the deceased-defendant 2 (who was respondent No. 3 therein) on 25.04.2006. Interestingly, defendants 16 to 18, appellant in AS No. 1887 of 1988, were on the record of AS No. 1433 of 1989 as respondents 5 to 7. Hence, it cannot be urged that defendants 16 to 18 were not aware about the demise of defendant 2 during pendency of their appeal in the High Court. In any case, such alleged want of knowledge of defendants 16 to 18 cannot save the operation of law whereby, their appeal stood abated against the deceased-respondent (defendant 2) and thereby, was rendered incompetent against the other respondents. F

47Copy pinpoint47. So far as the present appeal is concerned, though it appears that the plaintiff-appellant, clearly under a wrong advice, made an application for substitution of the legal representatives of defendant 2 but indicated in the application that the said defendant had expired during the pendency of appeal in the High Court. The legal representatives of G defendant 2 having not been brought on record in the High Court, there was no necessity for the appellant to seek such a substitution in the present appeal. Significant it is to notice that so far as the appeal of the plaintiff before us is concerned, the same could definitely proceed even in the absence of the legal representatives of defendant 2 because in H

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A case of success of this appeal, there is no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2. B

48Copy pinpoint48. For the reasons foregoing, we are clearly of the view that this appeal deserves to be allowed only on this ground that the appeal of defendants 16 to 18 before the High Court (AS 1887 of 1998) was rendered incompetent after its abatement against defendant 2 (respondent 3) and was liable to be dismissed as such. C Point No. 3

49Copy pinpoint49. Though we could have closed the matter with determination of first two points but, in the interest of justice, we have also examined if High Court was justified in reversing the findings of Trial Court in respect of the alleged agreement Ex. B-10. Having examined the matter in its totality, in our view, the findings of the High Court in relation to the document Ex. B-10 remain unsustainable and are required to be set aside. This is for the reasons indicated infra.

50Copy pinpoint50. A comprehension of the salient features of this case makes it clear, as observed hereinbefore, that the questions relating to the two documents, Ex. B-9 and Ex. B-10 were intrinsically intertwined, particularly when it was suggested by the contesting defendants that in the Will (Ex. B-9), apart from making bequest, Annapurnamma also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that Annapurnamma also directed her mother to discharge the debts. The agreement mentioned in the Will was none other than Ex. B-10. This unmistakable inter-mixing of the two documents Ex. B-9 and Ex. B-10 had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that Annapurnamma was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of Annapurnamma’s sister.

51Copy pinpoint51. It appears that the High Court has missed out this fundamental feature of the case that two documents, Will (Ex. B-9) and agreement H

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& ORS. [DINESH MAHESHWARI, J.]

for sale (Ex. B-10), as put forward by the contesting defendants cannot A be analysed independent of each other, even if they were separate in terms of the alleged time of their execution by about 1½ years. As noticed, a submission was made before the High Court that when the Will (Ex. B-9) was found surrounded by suspicious circumstances, the agreement (Ex. B-10) must also be rejected as a necessary corollary. The High B Court rejected this contention with reference to the fact that the agreement (Ex. B-10) was prior in time and was an independent document which could be enforced as such. The High Court also made a comment that the ground for invalidating the Will could not be pressed to invalidate the agreement. 51.1. In our view, looking to the nature, purport and contents of these documents, time gap between the two is not of much relevance when examining the questions about their validity and genuineness; and in any case, the sale agreement (Ex. B-10) did not remain an independent or stand-alone document once it was found that this document was indeed mentioned in the disputed Will and the obligations thereunder were purportedly passed on to the legatee. Moreover, the Will also required the legatee to pay the debts of Annapurnamma. The defendants also suggested the indebtedness of Annapurnamma to be the reason for sale of the property in question. 51.2. Putting all the things together, it is beyond cavil that indebtedness of Annapurnamma and her agreeing to sell the property to defendant 15 formed an integral part of the alleged Will. Therefore, the two documents could not have been segregated. 51.3. As noticed, the Trial Court as also the High Court have recorded concurrent findings that the document of Will (Ex. B-9) was a F highly suspicious document and the propounders have failed to remove the suspicious circumstances. We are not suggesting that all such considerations against the Will in question would ipso facto apply to the agreement Ex. B-10 but, while examining preponderance of probabilities about existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct G cannot be kept at bay. It gets perforce reiterated, that the alleged agreement is intertwined with the rejected Will because of the specific contents of the latter. Obviously, therefore, the repercussions of findings against genuineness of the Will are bound to impact the agreement too. H

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A In this view of the matter, the consideration of the High Court appears to be suffering from the fundamental error of approach.

52Copy pinpoint52. The High Court has observed that the plaintiff has not taken specific pleadings regarding financial capacity of defendant 15 and about forgery of the documents. These observations carry their own shortcomings. We have noticed the pleadings of the plaintiff hereinbefore; and it cannot be doubted that after these documents were introduced by the contesting defendants, the plaintiff clearly averred that they were false and fabricated. In the given circumstances, the onus was heavy on defendants to establish the genuineness of these documents. While discharging such onus, the defendants attempted to suggest indebtedness of Annapurnamma to be the reason for her selling the land to defendant

15. The defendants also attempted to suggest the finances obtained and gathered by defendant 15 for this purchase, apart from suggesting that the land in question was given on lease by defendant 15. In the given circumstances, the relevant factors emanating from the evidence cannot be ignored with reference to the want of specific pleadings.

53Copy pinpoint53. As noticed, the Trial Court had returned clear findings that the suggestion about indebtedness of Annapurnamma was not supported by cogent evidence. The fact that the contesting defendants failed to establish indebtedness of Annapurnamma has its own bearing on the question relating to the agreement (Ex. B-10) because the same was allegedly executed due to the requirements and needs of Annapurnamma. The Trial Court, in that regard made a pertinent comment that if Annapurnamma was at all reeling under debts, nothing was shown as to who the creditors were and nothing was shown as to how the amount of Rs. 40,000/-, allegedly given by defendant 15 under the agreement (Ex. F B-10), was utilised. If the story of indebtedness of Annapurnamma goes in doubt, the suspicions surround not only the Will (Ex. B-9) but agreement (Ex. B-10) too.

54Copy pinpoint54. The suggestions by the contesting defendants about the manner of raising money by defendant 15 for the purchase under the agreement G (Ex. B-10) carry their own intriguing features and high level of improbabilities. It has been suggested by defendant 16 (deposing as DW- 6) that her husband (defendant 15) purchased the land in question from her younger sister Annapurnamma for a consideration of Rs. 42,600/-; she was present at the time of execution of sale agreement; and a sum H of Rs. 40,000/- was paid at the time of agreement and possession was

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& ORS. [DINESH MAHESHWARI, J.]

delivered. According to DW-6, her husband (defendant 15) arranged for A the said amount of Rs. 40,000/- by sale of his property to DW-10 and his son and by borrowing from DW-11. The sale deeds in favour of DW-10 and his son were executed as late as in the year 1984 and the Trial Court has clearly pointed out that there was no mention of any previous agreement in those sale deeds10. Thus, the story of obtaining Rs. 20,000/ B - from DW-10 in the year 1976 has no legs to stand and is required to be rejected. Then, borrowing of Rs. 19,000/- from DW-11 was suggested by way of a promissory note (Ex. B-18) written by defendant 15 himself. There being no corroborative documentary evidence, no probative value could be attached to this self-serving document of defendant 15. 54.1. The High Court has, in our view, erroneously discarded the aforesaid glaring weaknesses in the case of the defendants while observing that defendant 16 spoke about the method and manner of receiving money by her husband only by way of ‘abundant caution’ and even if that part of her deposition is doubtful or improbable, the same would not make any difference. We are unable to agree. If this part of the statement of defendant 16 (DW-6) is found to be improbable, the suspicion surrounding the documents is magnified further and it is seriously questionable if at all any such document (sale agreement) was executed by Annapurnamma and if at all any payment was made by defendant 15 thereunder. E

55Copy pinpoint55. Yet another relevant aspect of the matter, duly taken into consideration and highlighted by the Trial Court is that if at all any such agreement was executed on 05.11.1976, there was no reason that the vendee did not get the sale document registered for a long length of time because Annapurnamma expired 1½ years later. The High Court has made a cursory observation that DW-6 gave an explanation in that regard F and there was no serious challenge to what she stated11. The High Court has not given the details of so-called explanation of DW-6. However, we have examined her statement placed on record. The explanation has been that ‘they thought of getting a registered deed in the year 1977 but could not do so because they had sustained loss due to cyclone’. She G was indeed cross-examined on this aspect where she stated that they had not stipulated the time for registration and they thought of getting it registered ‘when got money’. Even this explanation has its problems 10 vide paragraph 18.3 supra. 11 Reproduced in paragraph 25.2 supra H

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A when visualised in the context of other assertions that defendant 15 obtained Rs. 19,000/- in loan from DW-11; and that defendants 5 and 6 were inducted as lessees on the land in question. 55.1. DW-6 has suggested that her husband repaid the loan of Rs. 19,000/- taken from DW-11 and took back the pro note (Ex. B-18). B The person allegedly advancing such loan (DW-11) has stated that the debt was discharged ‘within four months’ by defendant 15 after selling sugar-cane. The disputed agreement bears the date 05.11.1976. If loan was taken from DW-11 for the purpose of the deal in question and was repaid within four months; and if defendants 5 and 6 were inducted lessees and were making payment of lease amount, it is difficult to accept the statement of DW-6 that they thought of getting the deed registered in the year 1977 but could not do so for having suffered loss due to cyclone. It is very difficult to reconcile that though defendant 15 could arrange for repayment of the loan amount of Rs. 19,000/- within four months and had inducted lessees on the land in question, yet he could not arrange the remaining sale consideration of about Rs. 2,600/-, allegedly due to loss! Therefore, the explanation and the reasons for not getting the deed registered also turn out to be hollow and unacceptable. Equally, the story of induction of defendants 5 and 6 as lessees by defendant 15 and payment of lease amount by them becomes highly improbable. E 55.2. This aspect, that there was no plausible reason for not obtaining registered sale deed, assumes importance when viewed in the light of the fact that Annapurnamma had otherwise been selling her property only by way of registered sale deeds.

56Copy pinpoint56. It is moreover interesting to notice that the defendant 15 never sought specific performance of this agreement by showing his readiness and willingness to perform his part of contract. Significantly, even when the plaintiff-appellant had filed the suit for partition claiming rights in the property of Annapurnamma including the property that was subject of the alleged agreement; and even when he was joined as party to this suit, defendant 15 never took steps to seek specific performance from the heirs of Annapurnamma or from the alleged legatee of the Will. The same had been the position of his legal representatives, who too never claimed specific performance.

57Copy pinpoint57. The factors noticed hereinabove jointly and severally operate against the genuineness of the agreement for sale Ex. B-10 and this document could only be rejected.

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& ORS. [DINESH MAHESHWARI, J.]

58Copy pinpoint58. The High Court has observed that the Trial Court proceeded on consideration that the sale was made to a relative and the scribe and the attestor were also relatives. The High Court has also referred to another factor taken into account by the Trial Court that why at all defendant 15 would have thought of purchasing the land at a place far- off from his settled abode. In the assessment of the High Court, these factors were of no adverse effect and were rather of natural dealings. In our view, these factors cannot be seen and examined in isolation. Even if each of these factors, by itself, is not decisive of the matter, they cumulatively give rise to justified suspicions and when they are juxtaposed with the major factors highlighted hereinabove, the case of the defendants about existence of the agreement (Ex. B-10) is knocked to the ground. C

59Copy pinpoint59. Therefore, we are clearly of the view that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that this agreement for sale (Ex. B-10) was as invalid and untrustworthy as was the Will (Ex. B-9). The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. D The High Court has been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in question. Conclusion

60Copy pinpoint60. For what has been discussed hereinabove, this appeal succeeds; the appeal filed by defendants 16 to 18 in the High Court (AS E No. 1887 of 1988) is dismissed as incompetent; and the impugned decree of the High Court in relation to that appeal is reversed. Consequently, the decree of the Trial Court stands restored. In addition to the costs awarded by the Trial Court, the plaintiff-appellant shall also be entitled to the costs of this litigation in the High Court and in this Court from the F contesting respondents.

Devika Gujral Appeal allowed