Ramanivas Gupta and Others vs Maliram

C.Y. Somayajulu, J.—Since all these appeals arise out of OS No. 856 of 1985, they are being disposed of by a common judgment. For the sake of convenience I would refer to the parties as they are arrayed in the suit.

Initially three plaintiffs filed the suit against five defendants for specific performance of an agreement of sale dated 5-10-1982 said to have been executed by the 1st defendant in their favour, in respect of malgies bearing Municipal Nos.21-2-172, 21-2-173 and 21-2-174, which are in their possession as tenants of the 1st defendant, and a right of pre-emption of the first floor portion over the said malgies, alleging that 1st defendant initially entered into an oral agreement to sell the aforesaid three malgies and the residential portion in the first floor of the said malgies to them on 16-8-1977, and that thereafter had on 5-10-1982 executed an agreement of sale in their favour in respect of the said three malgies for a total consideration of Rs. 3,06,000/- at the rate of Rs. 1,02,000/- per each malgi after having received Rs. 1,000/- towards part of the sale consideration and also agreed to sell the residential portion on the first floor of the malgies to them only in case he intends to sell the same, at the prevailing market rate, and had on 1-4-1983 received Rs. 11,000/- and Rs. 19,000/- on 31-1-1983, and thereafter agreed to sell the residential portion in the first floor of the malgies for a consideration of Rs. 1,50,000/-, which was the prevailing market rate at that time, but went on postponing execution of the sale deed on the ground that litigation is pending in connection therewith with defendants 9 and 10, and when 1st defendant was intending to sell the malgies to third parties, plaintiffs got made paper publication in ''Milap'' dated 26-3-1984 and the Deccan Chronicle dated 28-3-1984 informing the public about the agreement in their favour and had also sent a registered notice dated 7-4-1984 to the 1st defendant demanding execution of the sale deed in their favour, but 1st defendant on the pretext that the litigation in which he was involved at that time with defendants 9 and 10 would shortly be settled, postponed execution of the sale deed in their favour. Since the property agreed to be sold to them by the 1st defendant is the joint family property of defendants 1 to 5, defendants 2 to 5 also are bound to execute the sale deed in their favour.

As per the orders in IA No. 3258 of 1989, filed by defendants 6 to 8 to implead them as party-defendants to the suit on the ground that the 2nd plaintiff, who is their eldest brother, entered into the agreement with the plaintiffs for benefit of their joint family, defendants 6 to 8 were added as parties to the suit.

Plaintiffs filed IA No. 662 of 1989 to implead defendants 9 and 10 as parties to the suit on the ground that 1st defendant, with a view to defeat their claim in the suit entered into a collusive compromise in OS No. 130 of 1983, filed by defendants 9 and 10 against him and others for partition of their allegedly joint family properties including the property covered by the agreement of sale in their favour, and got allotted the property covered by the agreement of sale to defendants 9 and 10 towards their share, and that their petition to be added as parties to that suit to prevent the collusive decree being was passed dismissed by the trial Court and was confirmed in revision, with an observation that they can work out their (plaintiffs) rights separately. That petition was allowed and defendants 9 and 10 were added as parties to the suit.

Defendants 11 to 13, who are the alienees from defendants 9 and 10 of the property covered by the agreement, were impleaded as parties to the suit as per the orders in IA No. 3872 of 1989.

1st defendant filed his written statement denying execution of the agreement and receipt of payments thereunder as alleged in the plaint, and contending that since he was undergoing medical treatment from several years and since there was litigation and disputes between him and the members of the various branches of his joint family, he could not send a reply to the notice got issued by the plaintiffs and that a relative of his by name Om Prakash Gupta, promising to look after the litigation pending in Courts and also the suit OS No. 130 of 1983 filed by defendants 9 and 10 for partition of the joint family, and other affairs on his behalf, obtained his and his family members signatures on several papers, and that the plaintiffs, who are very close with Om Prakash Gupta, might have created the suit agreement of sale and other documents to gain unlawfully at his expense, and since the malgies covered by the agreement of sale relied on by the plaintiff were allotted to the share of defendants 9 and 10 in the final decree in OS No. 130 of 1983, he ceased to have interest in the property covered by agreement of sale relied on by the plaintiff.

2nd defendant filed his written statement alleging that since the malgies covered by the alleged agreement of sale relied on by the plaintiffs, and the residential portion on the first floor thereof are the joint family properties of himself, defendants 1, 3 to 5 and defendants 9 and 10, 1st defendant has no right to alienate the malgies and the residential portion thereon and hence the agreement of sale allegedly executed by the 1st defendant is not binding on him and the other members of joint family.

Defendants 3 to 5 filed a Memo adopting the written statement of the 2nd defendant.

9th and 10th defendants filed a written statement contending that their father Laxminarayana Gupta and 1st defendant had several joint family properties and during partition, as per registered deed dated 24-8-1972, properties bearing Nos. 21-2-166 to 21-2-170 and 21-2-171 to 21-2-174 were kept joint between them i.e., the members of the joint family and so they, who are the surviving heirs in the branch of Laxminarayana Gupta, filed OS No. 130 of 1983 for partition of the properties which were kept joint with 1st defendant, and in the final decree passed therein on 22-2-1989, properties bearing Nos. 21-2-166 to 21-2-170 were allotted to the share of defendants 1 to 5 and properties bearing Nos. 21-2-171 to 21-2-174 were allotted to them and so the suit for specific performance against them in respect of the properties allotted to them is not maintainable.

Defendants 11 to 13 filed a Memo adopting the written statement filed by defendants 9 and 10.

2nd plaintiff and defendants 6 to 8 filed a Memo on 11-2-1991 that they have adjusted the matter inter se among themselves and are not interested in prosecuting the suit and so they, i.e., plaintiff No. 2 and defendants 6 to 8 are withdrawing their claim to the extent of their interest in the agreement in respect of premises No. 21-2-173 and so the suit may be dismissed in respect of that part of the property.

1st plaintiff also filed a Memo that he settled the matter out of Court with the defendants with regard to claim for specific performance in respect of malgi No. 21-2-172 and so the suit in respect of that part of the property may be dismissed as not pressed. Therefore, effectively, the suit is only in respect of malgi 21-2-174 and the residential portion on the 1st floor of the malgies.

Basing on the above pleadings, the trial Court settled five issued and three additional issues for trial. The suit OS No. 856 of 1985 and another suit OS No. 307 of 1983 filed by plaintiffs 2 and 3 against defendants 9 and 10 were clubbed and tried together by the trial Court. In support of their case, plaintiffs examined four witnesses as PWs.1 to 4 including the 3rd plaintiff as PW1 and marked Exs.A1 to A30. In support of their case, defendants 1 to 5, 9 to 13 examined four witnesses as DWs. 1 to 4 and marked Exs.B1 to B20 and Exs.X1 and X2. The trial Court decreed the suit for specific performance in favour of 3rd plaintiff in respect of malgi No. 21-2-174 and in respect of first floor portion thereof by directing him to pay Rs. 1,02,000/- minus Rs. 10,330.33 ps., towards the value of the malgi and the market value of the residential portion thereon in the first floor as on the date of Ex. A3.

Aggrieved by the said decree the defendants 11 to 13 preferred CCCA No. 39 of 1994, defendants 3 and 5 filed CCCA No. 41 of 1994. Since 1st defendant died after passing of the decree, his wife, as his legal representative, filed CCCA No. 47 of 1994. Defendants 2 and 4 filed CCCA No. 49 of 1994 and defendants 9 and 10 have filed CCCA No. 174 of 1994.

The point for consideration in these appeals is whether the 3rd plaintiff is entitled to seek specific performance of the agreement of sale (Ex.A3) dated 5-10-1982 in respect of the malgi No. 21-2-174 and the residential portion in the first floor thereof?

Senior Counsel appearing on behalf of the different appellants raised separate contentions attacking the decree and judgment of the trial Court granting specific performance of the agreement of sale in favour of 3rd plaintiff. Different Counsel appearing for the 3rd plaintiff in the appeals addressed separate arguments, supporting the decree and judgment of the trial Court. The main thrust of the arguments on behalf of the defendants 1 to 5, 9 to 13 (appellants) is that even a plain reading of Ex.A3 agreement of sale shows that it was brought into existence subsequent to the filing of OS No. I30 of 1983, because the evidence of DW4 shows that the stamp paper on which Ex.A3 agreement was engrossed was in fact sold to one G. Srinivasa Rao, S/o. Srihari, on behalf of one M. Kamalamma, as disclosed by the entry in Ex. X2, but not on behalf of Madanlal Gupta (1st defendant) as found in Ex.A3 and so it is clear that in order to facilitate ante-dating the document, a stamp paper purchased for the benefit of another person was used, by tampering with the name of the person for whose benefit the stamp was purchased i.e., M Kamalamma, and was engrossed on a tampered stamp paper only to satisfy the requirement of Rule 6(2) of the Indian Stamp Rules, and the use of the words ''suit malgies'' in clause (2) of Ex.A3 also clearly shows that pendency of OS No. 130 of 1983 filed by defendants 9 and 10 against 1st defendant for partition was lingering in the minds of the plaintiffs while creating Ex.A3, and since in para 2 of the plaint it is clearly alleged that 1st defendant executed Ex.A3 as Karta of the joint family, the contention that the property covered by Ex.A3 was the exclusive property of lst defendant cannot be true, and in any event since Ex.B16 clearlyestablishes that the property covered by the suit was the joint family property of the 1st defendant and Lakshminarayana Gupta, father of defendants 9 and 10, and it is not the exclusive property of the 1st defendant, for him to enter into an agreement of sale without reference to defendants 2 to 5, and since the proposed sale, in any event, is not for the benefit of the estate or for legal necessity, and since establishment of legal necessity is the sine qua non for the sale made by a father manager binding the share of his sons, who are majors, as held in Radhakrishnadas Vs. Kaluram, , in any event Ex.A3 does not bind the share of defendants 2 to 5; and that the alleged oral agreement of sale of the residential portion in the first floor of the malgies is void for uncertainty, and in any event, since the property covered by Ex.A3 was allotted to the share of defendants 9 and 10 as per the final decree in OS No. 130 of 1983, and since partition does not give, grant or create a title in a coparcener, but enables him to obtain what is his own in a definite and specific form for purposes of disposition, independent of the wishes of his former co-sharers as held in Girija Bai v. Sadashiv Dhundi Raj, 43 Indian Appeals 151 (at page 161) referred to and relied on in V.N. Sarin Vs. Ajit Kumar Poplai, and since as per Hindu Law, an alienee from a coparcener in certain specific family property does not acquire any interest in the property, but only gets an equity to enforce his right in a suit for partition and to have the property alienated set apart for the alienor''s share if possible, as held in Manjaya Mudalai v. Shanmuga Mudalai ILR 38 Mad. 684, and since the concept of joint family property is that each of the coparcener is entitled to same right as the other and all the coparceners hold together the coparcenary property, and when a partition is effected all that happens is not a transfer of interest from one to other, but only a release of interest of one coparcener in favour of the other, in specific immovable property allotted to later as and for his share, and since a sharer, on partition, does not derive title to his share from any one else, the final decree passed in OS No. 130 of 1983 on the basis of a compromise, cannot be said to be collusive, more so because there is no averment in the plaint that the decree is a collusive decree, and since Section 17(b) of the Specific Relief Act, 1963 does not cover cases of allotment of a properly, covered by an agreement of sale, to the share of another coparcener during partition, as held in K. Appa Rao v. P. Bala Subramanya Gramani AIR 1976 Mad. 70, decree for specific performance cannot be passed against defendants 9 and 10, who are not parties to the agreement and who did not acquire right through or from the 1st defendant, and as held in Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru, , defendants 9 and 10 are not necessary parties to the suit and since an agreement of sale, or a decree for specific performance of an agreement of sale does give or create a right or title in favour of the agreement holder, or the holder of a decree for specific performance of an agreement of sale, and since the right and title in the property agreed to be purchased passes to him only on the execution of a deed of sale either by the judgment-debtor or by Court, as held in Babu Lal Vs. Hazari Lal Kishori Lal and Others, , plaintiffs cannot question the allotment of the property covered by Ex.A3 agreement and the residential portion on the first floor thereof to the share of defendants 9 and 10 as per compromise decree in OS No. 130 of 1983.

The contention of the learned senior Counsel appearing on behalf of the 3rd plaintiff is that since the 1st defendant did not dispute the passing of Exs.A4 to A6 receipts and Ex.A3 agreement by sending a reply to the notice got issued by the plaintiffs seeking specific performance of Ex.A3 agreement, nor publish a rejoinder to Exs.A1 and A2 public notices and since the 1st defendant did not go into the witness box to deny the Ex.A3 agreement and Exs.A4 to A6 receipts, and since the evidence of DW1, a power of attorney 1st defendant cannot be a substitute for the evidence of 1st defendant, as held in Kanadapudi Bharathy, Gudivada and another Vs. Authority Under Section of A.P.S.E. Act-cum-Labour Officer, Machilipatnam and another, , an adverse inference has to be drawn against the 1st defendant as held in Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, . Relying on Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, , Pawan Kumar Gupta Vs. Rochiram Nagdeo, , Alapati Sivarama Krishniah v. Alapati Kasi Viswanadham, 1956 An.WR 1004 and H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , it is contended that since the 1st defendant admitted his signatures on Ex.A3, but took a stand that he affixed his signatures to blank papers, the burden or proof to establish that Ex.A3 was brought into existence on a blank paper containing his signature is on the 1st defendant, and since neither the 1st defendant nor his wife, who signed as an attestor, go into the witness box to explain the circumstances in which they had to affix their signatures to blank paper(s), an adverse inference was rightly drawn against 1st defendant. It is further contended that since the evidence adduced on behalf of the defendants does not clearly establish the pedigree of defendants 1 to 5, 9 and 10, in view the principles laid down in State of Bihar Vs. Radha Krishna Singh and Others, and Dolgobinda Paricha Vs. Nimai Charan Misra and Others, , it cannot be said that 1st defendant and defendants 9 and 10 constituted members of a joint family at some point of time, enabling defendants 9 and 10 filing a suit for partition in OS No. 130 of 1983 including the property covered by Ex.A3 and the residential portion thereon also, as the joint family property between them and 1st defendant, when there is ample evidence on record to show that 1st defendant has been dealing with the property covered by Ex. A3 agreement as his self acquired property. It is contended that recitals in Exs.A10 to A12, if carefully read, establish that the property covered by Ex.A3 is the separate property of 1st defendant and since in Ex.A3 agreement also 1st defendant described himself as the absolute owner of the property agreed to be sold thereunder, and since there is no presumption that the joint family has joint family property as held in V. Venkataswamy and Others Vs. V. Radhakrishna Reddi and Others, , K. Obul Reddy v. B. Venkata Narayan Reddy AIR 1984 SC 1171 and Mst. Rukhmabai Vs. Lala Laxminarayan and Others, , N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, , State of Maharashtra Vs. Narayan Rao Sham Rao Deshmukh and Others, , State Bank of India Vs. Ghamandi Ram (Dead) through Gurbax Rai, , Bhagwan Dayal Vs. Mst. Reoti Devi, and P. Govind Reddy v. G. Obulamma 1971 (2) An.WR 43 (FB) and since admissions do not confer title to immovable property as held in Ambika Prasad Ram v. Iqbal Roy AIR 1966 SC 605 (towards the end of para 13), it has to be held that the property covered by Ex.A3 agreement is the absolute property of the 1st defendant. It is contended that since the document under which the property covered by Ex.A3 was purchased is not produced, necessary inference has to be drawn for its non-production as held in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, and the contention that the property covered by Ex. A3 is the joint family property of defendants 1 to 5, 9 and 10 cannot be accepted. Relying on the observations in Bai Dosabai Vs. Mathurdas Govinddas and Others, reading-

"But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the contract or a gratuitous transferee of the property. Thus, the equitable ownership in property recognised by equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee."

and the observations Kartar Singh Vs. Harjinder Singh and others, that when the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property, and if the property agreed to be sold is distinguishable by the shares of the respective vendors, the agreement for sale can be enforced against the vendor, who had signed it, and it is contended that since Ex.A3 clearly recites that a separate sale deed in favour of the three plaintiffs separately in respect of the three malgies, would be executed by the 1st defendant, though plaintiffs 1 and 2 have not been taking interest in the case, third plaintiff is entitled to seek enforcement of Ex.A3 agreement in respect of the malgi No. 21-2-173 in his possession and the upstair residential portion. Relying on M. Venkata Rao v. K.A. Mangatayaramma 1997 (4) ALD 121 (DB) at page 125, it is contended that 1st defendant cannot be plead that since his title is defective, Ex.A3 cannot be enforced against him. Relying on Smt. Shaharyar Bano and Another Vs. Seth Sanwal Das, , S.V.R. Mudaliar (Dead) by Lrs. and Others Vs. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and Others, , Prakash Chandra Vs. Angadlal and Others, and Ch. Ranganadha Chetty v. M. Chinnamma and Anr., 1985 ALT 114 (NRC), it is contended that the decree for specific performance passed by the trial Court needs no interference. Relying on Katragadda China Anjaneyulu and Another Vs. Kattragadda China Ramayya and Others, and Katragadda China Ramayya Vs. Chiruvella Venkanraju and Another, , it is contended that since there is nothing on record to show that the property covered by Ex.A3 agreement ever formed part of the joint family property between 1st defendant and defendants 9 and 10 or their ancestors, basing on Ex.B16, only, which is merely marked but not proved, it cannot be said that defendants 9 and 10 have any interest in the suit property covered by Ex.A3 agreement, by relying on V.A. Amiappa Nainar (Died) and Others Vs. N. Annamalai Chettiar (Died) and Others, and Mangathayammal v. Thitthirasami Naicker, (1976) 89 MLW 405, where it is held that mere marking of a document does not amount to proof it is contended that Ex.B16 cannot be taken into consideration. Relying on Ganga Charan Vs. Bans Bahadur Singh and Another, , it is contended that since the transfer in favour of defendants 11 to 13 was during the pendency of the suit the same is hit by Section 52 of the Transfer of Property Act. Relying on Sub-rule (5) of Rule 1 of Order XXIII CPC and Mt. Ram Dei v. ML Baku Rani AIR 1922 Pat. 489, it is contended that merely because plaintiffs 1 and 2 had withdrawn from prosecuting the suit without the consent of 3rd plaintiff, the right of the plaintiff to claim specific performance in respect of the Malgi No. 21-2-174 and the residential portion on its first floor is not affected.

It is true that merely because plaintiffs 1 and 2 have filed Memos that they have no interest in the subject-matter of the suit, when 3rd plaintiff did not consent for withdrawal of the suit, the entire suit claim cannot be dismissed, because as per Sub-rule (5) of Rule 1 of Order XXIII CPC a suit can be withdrawn only when all the plaintiffs have given consent for such withdrawal. Therefore the claim of the 3rd plaintiff has to be determined without being influenced by the fact that 1st and 2nd plaintiffs have withdrawn their claim in respect of two, out of the three malgies, covered by Ex.A3.

It is no doubt true as held in V.A.A. Nainar (supra) and Mangathayammal (supra) mere making of a document does not amount to proof thereof. That principles does not apply to Ex.B16 because DW1, who is the power of attorney holder of the 1st defendant, is also an attestor to Ex.B16, and was also present at the time of registration of Ex.B16 as an identifying witness, as seen from Ex.BI6. A document can be proved in several ways and not merely by examining the executant only. Therefore, merely because 1st defendant is not examined, it cannot be said that Ex.B16 is not proved, when it is marked through DW1, who attested it, and identified the executants before the registering authority. During the course of cross-examination of DW1 significantly 3rd plaintiff got marked Ex.A16, copy of the plaint in OS No. 1601 of 1982, filed by the 1st defendant against one Ram Niwas, on 31-12-1982, seeking an injunction restraining the said Ram Niwas from interfering with his possession and enjoyment over the upstair portion of the shops bearing Nos.21-2-171 to 174, Charkaman, Hyderabad, i.e., the malgies covered by Ex.A3 and another malgi; and Ex.A19, a copy of the plaint in OS No. 130 of 1983 filed by the defendants 9 and 10 against defendants 1 to 5 for partition of the properties covered by Ex.A3 agreement and other properties. In para 5 of Ex.A16 1st defendant clearly averred that he and Prem Prakash Gupta are the co-owners of the premises Nos. 21-2-166 to 174, (which includes the properties covered by Ex.A3 agreement) and that during March, 1981 his co-owner Prem Prakash Gupta agreed to sell his half portion in the premises Nos.21-2-166 to 174 to him, but later got issued a notice dated 28-7-1981 (wrongly typed as 28-7-1982 in para 5 of Ex.A16) for partition and separate possession and that he sent a reply thereto. The reply notice dated 19-8-1981 given by the 1st defendant, to the notice dated 28-7-1981 got issued by the 9th defendant, is shown as document No. 2 in the list of documents filed along with Ex.A16 (plaint in OS No. 1601 of 1982) and is marked as Ex.A17, where there is a clear averment that during the middle of March, 1981 there was an agreement between him (1st defendant) and Prem Prakash Gupta (9th defendant) for sale of his (9th defendant) half share in the properties kept by them jointly. In Ex.A19 (plaint in OS No. I30 of 1983) filed by defendants 9 and 10 for partition on 3-2-1983), there is a reference to Ex.B16, and in para 6 thereof it is alleged that there was demand for partition of the property bearing Nos.21-2-166 to 174, and other properties and that the 1st defendant having admitted their status as co-owners set up an agreement of sale. So, even from the documents got exhibited by the 3rd plaintiff, it is clear that even before Ex.A3 agreement dated 5-10-1982, 9th defendant made a demand for partition of the properties that were kept joint between him and the 1st defendant, and in 1981 also the 1st defendant admitted that he and the 9th defendant are joint owners of the property covered by Ex.A3 agreement and other properties. Voluminous documentary evidence adduced by 3rd plaintiff himself shows that even long prior to Ex.A3, 1st defendant admitted that he and 9th defendant are co-owners of the property covered by Ex.A3 and other properties. If the plaintiffs were diligent enough, they would not have failed to know that 1st defendant prior to Ex.A3 did not ever claim that the property covered thereby exclusively belonged to him, and that it is not joint family property. Moreover since Ex.B16 is a registered document of the year 1972, i.e., several years prior even to the alleged oral agreement dated 15-8-1977 referred to in Ex.A3 and Ex.A3 also, it is not open to the 3rd plaintiff to contend that the recitals in Ex.B16 are not true, because he has no locus to question Ex.B16. Since the maxim is Caveat Emptor, 3rd plaintiff, and plaintiffs 1 and 2, ought to have made enquiries regarding the nature of the property intended to be purchased by them, instead of blindly believing the representation said to have been made by 1st defendant that it is his self-acquired property. In view of all the above, the non-production of the document of title relating to the property covered by Ex.A3 has no relevance and so no inference, muchless adverse inference, need be drawn against the 1st defendant for non-production of the document of title under which the property covered by Ex.A3 was acquired by the family of 1st defendant. If I may say so 3rd plaintiff ought to have taken care to peruse the said document before he thought it fit to enter into Ex.A3 transaction. He cannot be heard to say that since the document of title of the property covered by Ex.A3 is not produced it has to be presumed that the property covered by Ex.A3 is the self-acquired property of the 1st defendant, by ignoring Ex.B16. The recitals in Ex.B16, a deed of release, show that Laxminarayan Gupta and his two sons Prem Prakash Gupta and Kantivarma Gupta i.e., defendants 9 and 10 (the releasors) and 1st defendant, (the releasee), are the members of a joint family consisting of several immovable properties in the city of Hyderabad, and that property bearing Nos.21-2-141 and 142 at Charkaman was the residential house of their ancestors, in which the releasor and the releasee are entitled to equal share, and as the releasee, who is residing in and is using a major portion of said the house bearing Nos.21-2-141 and 142 for residential purpose, was intending to make repairs or construct a new house in place of existing old house, the releasors agreed to relinquish their right therein, by accepting Rs.40,000/- offered by the releasee. It is specifically mentioned therein that the property bearing Nos.21-2-141 and 142 and the double storied building consisting of shops in the ground floor bearing Municipal Nos.21-2-166 to 174 and the first floor consisting of residential accommodation thereon, would continue to be the joint family property between the releasors and the releasee.

One of the contentions on behalf of 3rd plaintiff is that from the recitals in Exs.A10 to A12 it is easy to see that the property covered by the suit is the exclusive property of 1st defendant. Ex.A10 is a copy of the sale deed dated 7-6-1972 executed by the 1st defendant in respect of property bearing old Municipal Nos.1122 and 1203 corresponding to new No. 21-2-177 and 21-2-232, in the road leading from Gulzar House to Charkaman, Hyderabad. Ex.Al 1 is the copy of the sale deed dated 28-11-1973 in respect of property bearing old Municipal Nos.1121 and 1204 corresponding to new No. 21-2-176 and 21-2-232/1. Ex.A12 is the copy of the sale deed dated 19-6-1974 in respect of old Municipal Nos.1120 and 1205 corresponding to new No. 21-2-175 and 21-2-232/2. The recitals therein show that the 1st defendant and his brother Maniklal Gupta, as proprietors of the firm "Raj Bahadur Motilal Heeralar had purchased the said properties from Vallabhdas, S/o. Seth Bhagwan Das, through J. Moosa, auctioneer, under a sale deed dated 18th Isfandar, 1358-Fasli, and that after the death of Maniklal Gupta in December, 1951, 1st defendant became the absolute, owner of the said properties, as the sole surviving partner of the firm "Raj Bahadur Motilal Heeralar. This suit is filed in respect of properties bearing Nos.21-2-172, 173 and 174, which are different from the properties covered by Exs.A10 to A12. There is no presumption that properties bearing Nos.21-2-172 to 174 were also purchased along with or under the same sale deed under which the properties sold under Exs.A10 and A12 were purchased. Merely because the 1st defendant described the adjacent boundary of the building sold under Exs.A10 to A12, especially the northern boundary in Ex.A11, as "Vendor''s building", the building to the north of the building sold under Ex.A11 does not become the absolute property of 1st defendant, if really it is not his self-acquired property. It is well known that some members of a joint family can carry on business in their individual capacity as partners, without reference to the joint family and other joint family members, as their own business, and acquire properties. Such property would be their self-acquired property but not the joint family property. It is also well known that members of a joint family, which has joint family property, can also have, or acquire, property individually. Such property would be their self-acquired property. So members of joint family part from having joint family property can also have separate property. Even assuming that the recital in Ex.A1 J amounts to an admission, as contended by the learned senior Counsel on behalf of 3rd plaintiff, in view of Ambika Prasad Ram case (supra), since admission does not confer title, joint family property would not become a self-acquired property of 1st defendant by his ''admission''. Therefore, Exs.A10 to A12 have no relevance for a decision in the suit.

The fact that in Ex.A3 agreement the property agreed to be sold was described as the absolute property of the 1st defendant does not have relevance in finding out the nature of the said property i.e., whether it is the joint family property or self-acquired property of 1st defendant. In many a case the vendor by himself, or in collusion with the vendee, would describe the property sold by him, as his self-acquired property, either to defraud the other joint family members or for some other reasons. That recital does not prevent the other joint family members from establishing that the property sold in fact is not the self-acquired property of the vendor, and is a joint family property.

There can be no two opinions for the proposition that a vendor cannot, in a suit for specific performance by the vendee, take a defence that since he has no title to the property agreed to be sold by him, the promisee cannot seek specific performance of the agreement executed by him. But if really the vendor has no marketable title to the property agreed to be sold by him, and the purchaser files a suit for specific performance of that agreement, making the real owner of the property also a party to the suit, and seeks a decree for specific performance against the real owner also along with the promisor, the real owner can defend the suit on the ground that the promisor has no title to the property agreed to be sold by him, and no decree can be passed against him. In this case since 3rd plaintiff is seeking the relief of specific performance against defendants 1 to 5 and 9 to 13. Defendants 2 to 5 and 9 to 33 can defend the suit on the ground that since 1st defendant is not the absolute owner of the property, the agreement entered into by him cannot be enforced against them who are strangers to the contract between the plaintiffs and 1st defendant.

As stated earlier 3rd plaintiff, who is relying on Ex.A3 agreement, should have satisfied himself that 1st defendant has absolute title to the property agreed to be sold by him, before entering into Ex.A3 agreement of sale. During cross-examination on 21-10-1992 3rd plaintiff as PW1 admitted that he has not seen the document of title of 1st defendant in respect of the property covered by Ex.A3, and as a tenant of one of the malgies he has been paying rent to the 1st defendant. Merely because a property is let out by a person, he cannot be presumed to be the owner of the demised premises, because it is well known that a ''landlord'' of a demised premises need not necessarily be the ''owner'' thereof. It is also well known that a co-owner or co-sharer, acting on behalf of the other co-owners or co-sharers, can let out the joint property to others without disclosing that he is only a co-owner or a co-sharer. During cross-examination on 22-10-1991 PW1 clearly stated that 1st defendant is the head of the family and also admitted that defendants 9 and 10 belong to the family of Laxminarayan Gupta, and that the ownership of the suit malgies vests in the families of 1st defendant and Laxminarayan Gupta. On behalf of 3rd plaintiff it is contended that a mistake must have crept in while recording the said statement of PW1, and obviously, the word ''not'' must have been omitted between the words ''is'' and ''true'' in the sentence "it is true that the ownership of the suit malgies vests in the families of 1st defendant and Laxminarayan Gupta". That contention does not appear to be correct because during further cross-examination on the same day, he (PW1) clearly stated that neither he nor 1st defendant known English, and that 1st defendant informed him that because of the pending litigation between him and the branch of Laxminarayan Gupta, he would execute the sale deed only after that litigation came to an end, and that is the reason why he did not file the suit till 1985. When 1st defendant informed the plaintiffs that there is a litigation pending between him and Laxminarayana Gupta''s branch in respect of the property agreed to be sold under Ex.A3, as an ordinary prudent purchaser, 3rd plaintiff can be presumed to have made enquiries with regard to the litigation pending between 1st defendant and the branch of Lakshminarayana Gupta, and the property covered therein and pleas taken by the 1st defendant in that litigation and must have voluntarily or involuntarily made the above admission.

PW2 is the brother of the third plaintiff and one of the attestors to Ex.A3. During cross-examination he stated that at the time of Ex.A3 1st defendant did not disclose that the property covered by Ex.A3 belongs to joint family of himself and his brother and that defendants 1 to 5 are residing together as members of joint family. PW3 is one of the tenants of the 1st defendant, and is the 1st defendant in OS No. 1365 of 1981, filed by his own brother for recovery of premises bearing No. 21-2-168, Charkaman, from him (PW3), by impleading the 1st defendant as 2nd defendant in that suit. During chief-examination he stated that the 1st defendant is the kartha of his joint family, and that 3rd plaintiff gave a paper publication about his entering into agreement with 1st defendant. During cross-examination he stated that he is not personally aware of the agreement of sale between 1st defendant and the plaintiffs, and that he knows that OS No. 130 of 1983 was filed for partition of the properties covered by Ex.A3 and other properties, including the malgi in his occupation. The evidence of PW3 who is examined mainly to speak that a paper publication was made by the plaintiffs alleging that they have an agreement of sale in their favour, is not of much help to the 3rd plaintiff. PW4 is examined to translate the Urdu words in the stamp paper used in Ex.A13, a rent deed filed in OS No. 1365 of 1981 i.e., the suit filed by PW3, against his brother and 1st defendant. Since PW4 was examined on 3-11-1993 while utilising the opportunity to adduce rebuttal evidence, it can be inferred that he is examined more with a view dilute the evidence of DW4, who was examined on 11-10-1993 on behalf of the contesting defendants. The evidence of PW4, which I would consider while considering the genuineness of Ex.A3, is not of help in deciding this suit.

The evidence of DW1, the General Power of Attorney of the 1st defendant is that he has been looking after the affairs of the 1st defendant from several years, and that Ex.A3 was not executed by the 1st defendant and that the property covered by Ex.A3 was the joint family property of Laxminarayan Gupta and 1st defendant, and that in 1972 some joint family properties were released in favour of 1st defendant by Laxminarayan Gupta, under Ex.B16, and that the branch of Laxminarayan Gupta filed OS No. 130 of 1983 seeking partition of the property covered by Ex. A3 and other properties against 1st defendant. The evidence of DW2, the 11th defendant is that after final decree was passed in OS No. 130 of 1983, he and defendants 12 and 13 have purchased the property covered by this suit and that they have no notice of Ex.A3 agreement in favour of the plaintiffs. The evidence of DW3, the 4th defendant, is that the branch of Laxminarayan Gupta released their share in property bearing H.Nos.21-2-141 and 142 for cash consideration of Rs.40,000/- in their favour and the remaining joint properties bearing Nos.21-2-166 to 174 were kept joint and OS No. 130 of 1983 filed for partition by defendants 9 and 10 ended in compromise and as per the compromise petition filed into Court on 15-7-1985 their branch (i.e., defendants 1 to 5), was allotted properties bearing Nos.21-2-166 to 170 and that defendants 9 and 10 were allotted the property covered by this suit, and that Exs.A3 to A6 do not contain the signatures of his parents and that he made an application to the Inspector-General of Registration and Stamps to verify whether the stamp used in Ex.A3 is a genuine one or not, and received a reply that the stamp was sold by Smt. Zafarunnisa Begum., a licensed vendor of stamps, to one G. Srinivas Rao, S/o. Srihari on behalf of Smt. K. Kamalamma, wife of Papalah. During cross-examination he denied the suggestion that they obtained a collusive decree in OS No. 130 of 1983, only with a view to nullify Ex.A3. The evidence of DW4 is that on Ex.818 application filed by DW3, they gave Ex.B19 reply and as per Ex.X2 entry in the register maintained by the stamp vendor, sent to his office, stamp bearing Sl.No. 8276 dated 4-10-1982 was sold to Srinivas Rao, son of Srihari for the use of K. Kamalamma wife of Papaiah. This is the oral evidence on record.

I would now consider the question if from the evidence on record it can be said that 3rd plaintiff is able to establish the execution of Ex.A3 by the 1st defendant. The evidence of DW4 read with Ex.X2 establishes that the stamp used for Ex.A3 was in fact sold to one Srinivas Rao for and on behalf of M. Kamalamma, wife of Papaiah, but not for the use of 1st defendant, as found in Ex.A3. No doubt as contended by Sri S. V. Reddy, on behalf of some of the defendants (appellants), as per Rule 6(2) of Indian Stamp Rules, 1925, as amended by G.O. Ms. No. 340, Revenue, dated 15-4-1967 a stamp paper purchased by or for the use of a person, can be used by that person or his legal representatives or his duly authorised agent only. It impliedly means others cannot make use of that stamp paper purchased for the use of a person. But neither the said rule, or the Stamp Rules nor the Stamp Act, lay down the consequences for breach of that rule. Therefore, I am not able to agree with his contention that for breach of the aforesaid Rule 6(2), Ex.A3 becomes unenforceable. If contrary to Rule 6(2) of the Stamp Rules, a deed is engrossed on a stamp paper not purchased by or for the benefit of any of the parties to that deed, such deed would become an improperly or insufficiently stamped deed, and the consequences contemplated by Section 35 of the Stamp Act would follow. Therefore, if such a deed is produced before any public officer, it has to be impounded and cannot be acted upon or registered or received in evidence. If stamp duty and penalty payable thereon are paid, such deed would attain the status of a duly stamped document and can be acted upon by public officers and registered and received in evidence. In this case since Ex.A3 was admitted in evidence, in view of Section 36 of Stamp Act, it cannot now be contended that it is an improperly stamped document. Since the object of the Stamp Act is to raise revenue for the State, but not to arm the litigant with a weapon of technicality to meet the claim of opponent, as held in Hindustan Steel Limited v. Dalit Construction Company AIR 1969 SC 1238, it cannot now be said that Ex.A3 is invalid, since it was executed on a stamp paper purchased for the use of another person who is not a party to the document. The evidence of DW4, read with Ex.X2, establishes that the stamp paper purchased for use of one M. Kamalamma was tampered with, and the name of 1st defendant was incorporated in the place of the said Kamalamma, which, prima facie, is a ground for holding that Ex.A3 could or must have been ante-dated. Significantly 3rd plaintiff, who had utilised the opportunity to adduce rebuttal evidence after the defendants closed their evidence, instead of trying to establish that the stamp paper used for Ex.A3 was purchased on behalf of 1st defendant himself but not on behalf of Kamalamma, chose to contend that 1st defendant was in the habit of making use of the stamp papers purchased by others, by putting suggestions to DW3 during cross-examination and by adducing the evidence of PW4 and relying on Ex.A13 lease deed, which was the subject-matter of OS No. 1365 of 1981. In fact Ex.A13, which has no relevance for a decision in this case, is a lease deed executed by the lessee of 1st defendant in favour of the 1st defendant, the lessor. Therefore, as per Section 29(c) of the Stamp Act, unless there is an agreement to the country, the stamp for Ex.A13 should be purchased by the lessee, but not the 1st defendant, the lessor. Since as per Section 62 of the Stamp Act, the executant of an insufficiently stamped document would be liable for penalties as prescribed therein, the onus to establish an agreement contrary to Section 29 of the Stamp Act, is on the person claiming that ''contrary agreement''. There is nothing on record to show that there was such an agreement between the lessor and lessee in respect of Ex.A13. So, if Ex.A13 is an insufficiently stamped instrument in view of its being engrossed on a stamp paper not purchased by a party thereto as disclosed the evidence of PW4, the transaction covered by Ex.A13 is not affected. The genuineness and enforceability of Ex.A3, does not depend on Ex.A13. Therefore the evidence of PW4 and Ex.A13 are redundant.

The contention of Sri N. V. Suryanarayana Murthy, learned senior Counsel appearing for 3rd plaintiff in one of the appeals, is that the evidence adduced on behalf of the contesting defendants is inconsistent with the plea taken in their written statements and since the suggestion put to PW1 during the cross-examination on 10-4-1992 on behalf of 1st defendant is that he and Om Prakash Gupta by misrepresenting the facts, obtained the signatures of 1st defendant on Ex.A3 agreement, it is clear that 1st defendant admitted his signatures in Ex.A3, and since DW1, during chief-examination, stated that the signatures in Exs.A3 to A6 look like the signatures of the 1st defendant and since 1st defendant did not even send a reply to Ex.A7 notice got issued by the plaintiffs and did not go into the witness box, the genuineness of Ex.A3 cannot be doubted in view of Dattatreya (supra), Alapati Sivarama Krishna (supra), Pawan Kumar Gupta (supra) and H. Venkatachala (supra). In Dattatreya case (supra) it is held that if the only plea taken is that the executant has not signed the document and that the document is a forgery, party seeking to prove the execution of the document need not adduce evidence to show that the party who signed the document knew the contents of the document, as ordinarily no one is expected to sign a document without knowing its contents, but if it is pleaded that the party who signed the document without knowing its contents, it may in certain circumstances be necessary for the party seeking to prove the document to place material before the Court to satisfy it that the party who signed the document had knowledge of its contents. . In Alapati Sivarama Krishnaiah case (supra), it is held if a person denies that he was written a letter which contains his signature, he must prove what he alleges, i.e., the letter was got up on a blank piece of paper containing his signature, as also the circumstances in which he happened to put his signatures on such a piece of paper. In Pawan Kumar Gupta case (supra), it is held that burden of proof cannot be cast on a plaintiff to prove that the transaction was consistent with the apparent tenor of the document, and so when the sale deed recites that the sale consideration was paid to the transferor, placing burden of proof to substantiate that recital in the document on the purchaser is redundant. In H. Venkatachala case (supra) observation in Williams on ''Executors and Administrators'' reading "generally speaking where there is proof of signature everything else is implied till the contrary is proved is relied upon. Since Ex.A3 is not a letter but is an agreement of sale, Alapati Sivarama Krishnaiah case (supra) has no application to the facts of this case. The specific case of the 1st defendant in his written statement is that he did not agree to sell the malgies or the residential portions on the first floor of the malgies to plaintiffs and since he was undergoing medical treatment from several years and since there is litigation and difference of opinion between him and the members of the various branch of the joint family, Om Prakash Gupta, his relative and a ''Pariavikar'' in Court affairs, with a mala fide motive approached and promised help to him, and the plaintiffs in collusion with the said Om Prakash Gupta fraudulently obtained his and his family members signatures on a number of papers and have fabricated the suit agreement. Thus, case of the 1st defendant is that Ex. A3 was brought into existence on the papers containing his signature. PW1 during cross-examination on behalf of defendants 9 to 13 on 22-10-1992 admitted that he and 1st defendant do not know English. ''Execution'' of an agreement of sale contemplates affixing of signature by the executant with knowledge of the contents therein. If a document is written in a language not known to the executant, and when ''execution'' of such document is denied, mere proof of signatures of the executant would not suffice, and the person relying on such document has to further establish that the executant affixed his signature to the document after knowing the contents thereof. Therefore, by merely establishing that Exs.A3 to A6, which are type written in English, contain the signatures of 1st defendant, plaintiffs cannot contend that ''execution'' of Exs.A3 to A6 is proved. Since 3rd plaintiff (PW1) and 1st defendant do not know English and since Ex.A3 is type written in English 3rd plaintiff should have explained as to who gave the draft for Ex.A3 and where it was got typed. There is no such evidence.

Neither PW2, the brother of 3rd plaintiff and an attestor to Ex.A3, nor the 3rd plaintiff as PW1, swore to the fact that the contents of Exs.A3 to A6 were read over and explained to the 1st defendant and that the 1st defendant affixed his signatures thereto by knowing or understanding the contents thereof. Since the wife of the 1st defendant is said to be one of the attestors to Exs.A3 to A6, 3rd plaintiff on whom the burden of proof to prove them lay, should have examined her as a witness to show that she affixed her signature to Exs.A3 to A6 as an attestor. No inference can be drawn against the defendants for non-examination of the wife of 1st defendant as a witness on their behalf. But as far as the 1st defendant is concerned, there is force in the contention of the learned Counsel for the 3rd plaintiff that his abstinence from the witness box entails an adverse inference being drawn against him. It is true that evidence of power of attorney of a party cannot be a substitute to the evidence of the party relating to matters within the personal knowledge of the party, because a power of attorney can speak only about the things known to him, personally, and in respect of other matters his evidence is but in the nature of hearsay, and therefore would be inadmissible in evidence. It is for the 1st defendant to come to the witness box, and swear to the circumstances under which he had to affix his signatures to the blank papers. Since 1st defendant abstained from the witness box and had also failed to send a reply to Ex.A7 notice got issued by the plaintiffs, it has to be taken that 1st defendant affixed his signatures to Exs.A3 to A6 with knowledge of the contents therein. But, as stated above, in view of Ex.X2 and the evidence of DW4, it is clear that Ex.A3 was brought into existence on a tampered stamp paper,(obviously ante-dating it, because if the transaction was genuine, a stamp could have been purchased on that day itself, and there is no earthly reason to use a stamp paper purchased for the benefit of another and tamper with that name and incorporate the name of 1st defendant therein.

Usually, in cases of purchase of immovable property, the stamp for the agreement would be purchased by the vendee because, as per Section 29(c) of the Stamp Act, the vendee, in the absence of contract to the contrary, has to bear the stamp duty for the sale deed also. 3rd plaintiff did not explain as to why he and other plaintiffs did not purchase the stamp for Ex.A3, and why 1st defendant had to purchase the stamp for Ex.A3. 3rd plaintiff, as PW1, admitted during cross-examination, that he has shown the amounts paid under Ex.A3 agreement in his income tax returns, and that he can produce his accounts and income tax returns, but they were not produced by the 1st defendant. The reasons for non-production of the account books and income tax returns of 3rd plaintiff are not explained. Non-production of the account books and the income tax returns of the 3rd defendant entails an adverse inference being drawn against him as held in Gopal Krishnaji Ketkar case (supra), and it, therefore can be presumed that they were not produced because they do not disclose the payments as stated in Exs.A3 to A6. This fact also lends support to the presumption that Ex.A3 was brought into existence with an ante-date.

Even assuming that Ex.A3 was not ante-dated, and was in fact executed on 5-10-1982, and even assuming that there was an oral agreement on 15-8-1977 also, in favour of plaintiffs and therefore are persons interested in the property covered by Ex.A3, as held in Bai Dosabai (supra) and Kartar Singh (supra), they have no locus to question Ex.B16, which is registered document of the year 1972, which is long prior to 15-8-1977 when the oral agreement referred to in Ex.A3 is said to have been entered into. 4th defendant, who is the son of the 1st defendant, has a share in the released property under Ex.B16 and also the property covered by Ex.A3 as well. Under Hindu Law, in respect of coparcenary property, the son does not claim through his father, and has a right by birth in the coparcenary property. Therefore 4th defendant also is competent to speak about Ex.B16. It is contended that since 4th defendant, as DW3 stated that Ex.B16 is a deed of partition and since the recitals therein do not show that it is partition deed, it cannot be taken into consideration. As stated earlier the recitals in Ex.B16 clearly show that out of the joint family properties some are still kept joint and in respect of some properties the sharers, after receiving money towards their share, released their rights therein in favour of the 1st defendant. There cannot be a dispute for the proposition that a partition can be partial. In respect of the property which was released in favour of 1st defendant by defendants 9 and 10 and their father, after receiving consideration, technically it is a partition in respect of that property, while keeping the other properties joint. Therefore, the question of defendants 1 to 5 creating Ex.B16, to get over Ex.A3 or the alleged oral agreement of 15-8-1977, does not arise at all, because it (Ex.B16) was registered five years earlier 1977, when plaintiffs did not even have an intention to purchase the property covered by Ex.A3. Therefore, Ex.A3, or the alleged oral agreement dated 15-8-1977 referred to therein, do not clothe the 3rd plaintiff with a right to question Ex.B16.

It is axiomatic that merely because a family is joint, it cannot be presumed that it possesses joint family property. So the catena of decisions cited for that proposition need not be referred to. As stated above in view of Ex.B16, and since in para 2 of the plaint it is alleged that 1st defendant executed Ex.A3 as Karta of the joint family for its benefit and so is binding on defendants 2 to 5 also, and since PW3 in his chief-examination itself stated that 1st defendant is collecting rents as karta of the joint family, it is clear that the property covered by Ex.A3 is the joint family property of defendants 1 to 5 and 9 to 10. OS No. 130 of 1983 for partition of joint family properties was filed by defendants 9 and 10 against defendants 1 to 5 in 1983, after issuing a notice demanding partition dated 28-7-1981 i.e., long prior to Ex.A3. As held in Girija Bai''s case (supra) and reiterated in V.N. Sarin case (supra) partition does not give a title or create a title in a coparcener or co-owner or co-sharer, but only enables a coparcener or co-sharer or co-owner to obtain what is his own in a definite and specific form, for purpose of disposition, independent of the of the wishes of his former coparceners or co-owners or co-sharers. Since partition is not a transfer of interest from one coparcener etc., to another, but only is a release of interest of one coparcener in favour of the other in a specific immovable property allotted to the later as per his share, as held in K. Appa Rao case (supra), the decree passed in OS No. 130 of 1983, allotting the property covered by Ex. A3 to the share of defendants 9 and 10 cannot be questioned by the 3rd plaintiff now can Ex.A3 be enforced against them because defendants 9 and 10 cannot be said to be claiming under 1st defendant, by a title subsequent to Ex.A3, falling u/s 19(b) of the Specific Relief Act. Therefore no decree for specific performance of Ex. A3 can be passed against defendants 9 and 10.

Since clause 4 of Ex.A3 reads-

"..... the vendor shall execute sale deed for all the three ground floor malgies jointly in favour of the purchasers individually and get the same registered according to law."

In view of Section 12(4) of Specific Relief Act, 1963, 3rd plaintiff can maintain a suit for specific performance of the agreement in respect of malgi No. 21-2-174 though plaintiffs 1 and 2 chose to withdraw from the suit. The contention of defendants that Ex.A3 became void for uncertainty u/s 29 of Contract Act after plaintiffs 1 and 2 withdrew from the suit has no force. The question is whether 3rd plaintiff is entitled to decree for specific performance in respect of Malgi No. 21-2-174 and the residential portion above the malgi?

With regard to the residential portion in the 1st floor of the malgies covered by Ex.A3, it reads-

(1)..... "if the vendor intends to sell the residential portion on the first floor in future, he shall sell the same to the purchasers at the prevailing market value and in case the purchaser do not agree for paying the prevailing market value, '' the vendor is at liberty to sell it to others.

(2) The vendor does hereby confirm that he has already agreed orally on 15-8-1977 that he would sell the suit malgies and residential portions of the first floor of the said malgies to the purchasers only.

(3)....

(4) The purchasers do hereby agree that they shall pay the balance sale consideration within six months from the date hereof and on such payment being made by the purchasers before the registering authority or otherwise, the vendor shall execute the sale deed for all the three (ground floor) malgies jointly in favour of the purchasers or three such deeds each in favour of the purchasers individually and get the same registered according to law.

(5) It is agreed between the parties that in the event of period of six months as provided above falling short for any reasons beyond the control of the parties, both the parties shall mutually extend such further time as shall necessary....."

The words ''ground floor'' in clause (4) are written in an ink which is different from the ink used for signatures of the parties. All the remaining part of Ex.A3 agreement is typewritten. In Ex.A1, publication made in Deccan Chronicle on 28-3-1984 it is stated :

".... entered into agreement for sale on 15-8-1977 and 5-10-1982 in respect of the above said malgies and the residential portion of the first floor with Sri Madanlal Gupta, the owner of the said property and have paid amount as advance."

The translation furnished of Ex.A2 publication, which is in Urdu, reads-

"..... entered into an agreement of sale in connection with the above said malgies and the residential portion of the first floor on 15-8-1977 and 5-10-1982 with the owner of the above said property i.e., Sri Madanlal Gupta and a huge amount has also been paid as advance in respect thereof."

Clause (2) of Ex.A3 extracted above shows that only a pre-emption agreement was entered into on 15-8-1977, Ex.A3 agreement dated 5-10-1982 is only for sale of the malgies, and in respect of the residential portion on the 1st floor of the malgies, plaintiffs were given the first right to purchase at the prevailing market rate, if and when 1st defendant intends to sell the same. In Ex.A7 legal notice got issued by the plaintiffs to the 1st defendant on 7-4-1984 it is alleged :

"..... it was also agreed that if you intend to sell the residential portion of the 1st floor in future, you shall sell the same to my client at the prevailing market value and if my clients do not agree for paying the prevailing market value, you were at liberty to sell said residential portion to others. Thereafter, you intended to sell the residential portion on the 1st floor to my clients and the price was fixed at Rs.1,50,000/- (Rupees one lakh fifty thousand only) for the residential portion which was the prevailing market value at that time."

The date on which the residential portion was agreed to be sold is not mentioned either in the plaint or in Ex.A7. The averment in the plaint is that the said agreement was subsequent to 31-1-1983. Exs.A1 and A2 publications read as though the agreement to sell the residential portion above the malgies covered by Ex.A3 also was made on 5-10-1982 which is not the case of plaintiffs in the plaint. From the terms of Ex.A3 it is clear that only after the 1st defendant expresses his intention to sell the residential portion on the first floor would the plaintiffs get the preferential right to purchase the same at the prevailing market rate. Neither the 3rd plaintiff as PWl, nor his brother as PW2 stated anything about the agreement relating to purchase of residential portion on the first floor of the malgies, agreed to be sold under Ex.A3. In fact PW1, towards the end of his chief-examination, only sought for a direction to execute the sale deed in respect of the malgi, and did not speak anything about the residential portion above the malgies.

From Ex.B15, certified copy of the final decree in OS No. 130 of 1983, it is seen that the suit OS No. 130 of 1983 as filed on 4-2-1983 and was taken on file on 10-2-1983. Ex.A1 and A2 publications were made on 25-3-1984, i.e., subsequent to the institution of OS No. 130 of 1983. In view of the above the date of the alleged agreement in respect of the residential portion in the first floor of the malgies, gains significance, and it is easy to see why plaintiffs abstained mentioned the date, month and year of the alleged agreement relating to the purchase of the residential portion on the first floor of the malgies covered by Ex.A3, either in Ex.A7 or in the plaint. From the averments in para 2 of the plaint it is clear that Exs.A1 and A2 publications were made only after the plaintiffs were informed, by the 1st defendant, about defendants 9 and 10 filing a suit for partition in respect of the properties covered by Ex.A3 and other properties. The averment in Ex.A2 that ''huge amount'' of advance was paid cannot be true, because the advance paid under Ex.A3, read with Ex.A6, was only Rs. 1,000/-. Subsequently under Ex.A4 dated 31-3-1983 a sum of Rs. 19,0007- and under Ex.A5, dated 4-1-1983, a sum of Rs.11,000/-, making a total of Rs.31,000/- only was paid as advance under the agreement, which, out of the agreed sale consideration of Rs. 3,06,000/-, cannot be a ''huge amount''. Since the last receipt Ex.A4 dated 31-1-1983 does not state anything relating to the agreement of sale of the residential portion in the first floor over the malgies covered by Ex.A3, plaintiffs obviously though it fit to allege in the plaint that ''that agreement was ''subsequent to 31-1-1983''. Here it should be remembered that the 9th defendant issued a notice dated 28-7-1981 to the 1st defendant demanding partition of the properties kept joint as per Ex.B16, and the plaintiff had on 19-8-1981 got a reply issued to that notice, under Ex.A17, setting up an agreement to purchase the half share of the 9th and 10th defendants. Therefore defendants 9 and 10 filed OS No. 130 of 1983 seeking partition of those properties on 4-2-1983.

According to the plaintiffs, 1st defendant was dodging execution of the sale deed in respect of the malgies covered by Ex.A3 on the ground that litigation is pending between him and defendants 9 and 10 with regard thereto. Would any ordinary prudent man buy further trouble by entering into a fresh agreement in respect of the residential portion over the malgies agreed to be sold under Ex.A3, when the vendor is dodging execution of the sale deed in respect of the malgies agreed to be sold? In my opinion the answer must only be "No". Therefore plaintiffs, obviously in a bid to take a chance by way of a gamble, without committing themselves to any date, vaguely alleged that 1st defendant "subsequently" agreed to sell the residential portion in the first floor over the malgies covered by Ex.A3. There is also no evidence on record to show when the 1st defendant expressed his desire to sell the residential portion, for the plaintiffs to exercise their right to purchase it at the prevailing market rate. In Ex.A7 it is stated that consideration for residential portion was fixed at Rs.1,50,000/-. When three malgies were allegedly agreed to be sold for over three lakhs, no ordinary prudent person would agree to sell the first floor on those malgies for less than half of the price agreed for the ground floor. This apart, there is no evidence on record to show that Rs. 1,50,000/- was the market price of the residential portion in the first floor of the malgies at the time when the agreement relating the residential portion on the first floor of the malgies was allegedly struck. There is also nothing on record to show that clause 4 of Ex.A3 would operate also in respect of the agreement of sale in respect of the residential portion on the first floor of the malgies. There is also nothing on record to show that three separate residential portions over the three malgies covered by Ex.A3 are available, and that each of them can be used separately and independent of the other. As per the preemption agreement in Ex.A3, the residential portion over the three malgies has to be sold to the ''purchasers'' i.e,, all the three plaintiffs. Therefore the ''promisees'' are three plaintiffs and the subject-matter of sale is ''residential portion on the first floor'' of the three malgies covered by Ex.A3 as a single unit, but not as three different units. Since plaintiffs 1 and 2 withdrew from the suit, and since the part to be sold to 3rd plaintiff cannot be ascertained, the said agreement in respect of the residential portion, even if true, is void for uncertainty as per Section 29 of the Contract Act. In any event since 3rd plaintiff as PW1 did not even state that there was an agreement between him and the 1st defendant for sale of the residential portion in the first floor of the malgies, the trial Court erred in passing a decree for specific performance in respect of the residential portion on the first floor of the malgi on 21-2-174.

As stated in para 31 above, a decree for specific performance cannot be passed against defendants 9 and 10, therefore decree cannot also be passed against defendants 11 to 13, who are the purchasers from defendants 9 and 10, because a relief that cannot be granted against a transferor cannot be granted against the transferee. The property in this suit for specific performance, being the subject-matter of OS No. 130 of 1983 which was instituted earlier to this suit, would have to be bound by the decree in OS No. 130 of 1983 in view of Section 52 of the Transfer of Property Act. Therefore 3rd plaintiff is bound by the decree in OS No. 130 of 1983. Even assuming that the decree in OS No. 130 of 1983 is not binding on 3rd plaintiff, and that he can seek specific performance of Ex. A3 agreement in respect of malgi No. 21-2-174, since Ex.A3 was executed by 1st defendant only, but not for and on behalf of his sons defendants 2 to 5, and since it is admitted in the plaint that the said property is the joint family property of defendants 1 to 5, and though it is alleged in the plaint that the agreement is for the benefit of the estate of the joint family, since there is no evidence to show that the sale is for the benefit of estate or joint family necessities, Ex.A3 agreement is not binding on the shares of defendants 2 to 5, and at best it can bind only the 1/5th share of 1st defendant as held in Radha Krishna Das (supra). Therefore even if the malgi 21-2-174 was allotted to the 1st defendant in the partition, 3rd plaintiff would have been entitled to seek execution of a sale deed in respect of 1/5th share of the 1st defendant therein, but not the entire malgi. Since 1st defendant was not allotted the malgi 21-2-174 in the partition, and was allotted some other property and since 3rd plaintiff did not ask for substitution of the property allotted to 1st defendant in place of malgi 21-2-174, he cannot be granted the relief of specific performance.

Since Ex,A3 obviously is an antedated agreement, and since the person seeking the relief of specific performance has to come to Court with clean hands and since 3rd plaintiff came to Court with a false case setting up an agreement to sell the residential portion in the first floor of the malgies, he is not entitled to the relief of specific performance even in respect of the share of 1st defendant. Since 3rd plaintiff did not seek the relief of refund, he is not entitled to refund of the money allegedly paid by him. In view of this finding it is not necessary to consider in detail all the other decisions cited by the learned senior Counsel, and so I am not referring to all the said decision in detail and further burden this judgment. Hence, I hold that the 3rd plaintiff is not entitled to the relief of specific performance or refund. The point is answered accordingly.

In the result, all the five appeals are allowed with one set of costs and the suit OS No. 856 of 1985 is dismissed with costs.