Dismissed

Ch.Laxmi v. K.Momin Bai

Telangana HC14 Aug 2012SA/1619/2011

Case brief

AI extract

What is this about?

In a second appeal regarding specific performance, the court held that the non-examination of the plaintiff is not fatal when the husband, present at the transaction and competent to testify under Section 120 of the Indian Evidence Act, supported the agreement of sale prior to obtaining a General Power of Attorney.

What did the court decide?

Second Appeal dismissed at the stage of admission. No costs.

Ch.Laxmi Vs K.Momin Bai — Specific Performance | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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S.A.No.1619 of 2011

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J U D G M E N T:

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The defendants in O.S.No.806 of 2002 on the file of the Additional Judge-cum-VI Additional Senior Civil Judge, City Civil Court, Hyderabad, are the appellants herein. The suit was one filed for specific performance of an agreement of sale dated 02.07.2001 which is said to have been executed by late Babaiah, husband of defendant Nos.1 and 2 and also related to the other defendants to an extent of 30.98 square yards for a consideration of Rs.1,90,000/-. A sum of Rs.50,000/- was said to have been paid on the date of agreement and the balance was agreed to be paid at the time of registration, after the vendor clears the taxes and other charges. In spite of repeated demands, the Babaiah did not execute the sale deed and he did not clear the debts. The plaintiff came to know that he died two days prior to 15.02.2002. Thereafter the plaintiff approached the legal representatives but the defendants did not co-operate and hence the suit.

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2. The contention of the defendants is that the agreement dated 02.07.2001 is not true. There was no need for Babaiah to sell the property and it is a forged one. The readiness and willingness pleaded by the plaintiff is also disputed. The agreement is not admissible in evidence.

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3. On the basis of the above pleadings, necessary issues were framed and after considering the evidence on record, the trial Court has decreed the suit and as against that, an appeal was preferred in A.S.No.463 of 2007 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, and the same was also dismissed. Hence the second appeal.

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4. Though an attempt was sought to be made that the

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agreement was not proved, in-fact, the nearest relative of the defendants was examined as PW.2 and he has supported the execution of the agreement of sale. Both the Courts, on appreciation of evidence, came to the conclusion that the agreement of sale is true and the plaintiff was ready and willing to perform the part of the contract. The only substantial question of law that was sought to be raised in the appeal is whether the agreement of sale can be held as proved without examining the plaintiff in the facts and circumstances of the case?

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5. It is no doubt true that PW.1, who is the husband of the plaintiff, claims to be a GPA holder to prosecute the case. In-fact, the evidence on record clearly goes to show that he was present at the time of the transaction as deposed by all the witnesses. The agreement of sale is Ex.A.1 and it was prior to the GPA-Ex.A.3 dated 10.06.2002. Therefore, even before the alleged GPA, PW.1 has got knowledge about the transaction and his evidence is independent of the GPA. Under Section 120 of the Indian Evidence Act, a husband and wife are competent to give evidence for or against each other. Therefore, when such is the situation, it is not open to contend that the evidence of PW.1 cannot be looked into and the non-examination of the plaintiff is fatal.

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6. The learned counsel for the appellants relied upon a decision reported in Man Kaur(dead) by LRs v. Hartar Singh Sangha^[1] , which, in the facts of this case, cannot be taken into consideration. In this connection, it is also useful to quote the decision reported in Shaik Rafath Begum v. T.V.R. Anjaneyulu^[2] . Therefore, when P.W.1 who is no other than the husband of the plaintiff is competent to speak about the transaction and his presence was also spoken at the time of transaction and the GPA was subsequent to the transaction, the non-examination of the plaintiff is not a fatal thing.

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7. Accordingly the Second Appeal is dismissed at the stage of admission. No costs. Miscellaneous petitions, if any, pending in this

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Second Appeal shall stand closed.

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JUSTICE N.R.L. NAGESWARA RAO

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14.08.2012 vjl

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[1] (2010)10 Supreme Court Cases 512

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[2] AIR 2007 A.P. 23

Ch.Laxmi v. K.Momin Bai

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Ch.Laxmi v. K.Momin Bai

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