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REPORTABLE

           IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION

           CIVIL APPEAL NO. 3407 OF 2008          (Arising out of SLP (C) No. 3658 of 2007)

Thota Lakshmi Venkata Bala                   .... Appellant (s)

         Versus

Muttamsetti Seethamma                        .... Respondent(s)

                         JUDGMENT P. Sathasivam, J.

1)   Leave granted.

2)   This appeal is directed against the judgment and order of

the High Court of Judicature, Andhra Pradesh at Hyderabad

dated 19.10.2006 in Appeal Suit No. 725 of 2000 whereby the

High Court dismissed the appeal filed by the appellant herein

under Section 96 of the C.P.C. against the judgment and

decree dated 8.2.2000 passed by the Principal Senior Civil

Judge, Vijayawada     in O.S. No. 655 of 1992 directing the

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appellant herein to execute and register the sale deed in

pursuance of the agreement of sale dated 19.8.1991 in favour

of the respondent herein and deliver possession of the plaint

schedule property to her within the prescribed time.

3)   The short facts leading to the filing of the above appeal

as stated in the S.L.P. are as under:-

On 06.11.1957, the grand father of the appellant herein

settled an extent of Acres 0.62 cents of vacant land situated in

Vidhyadahara puram, Vijaywada with old demarcation No.

48/2A, Revenue Survey No. 12/23 in favour of the appellant

herein.    The appellant and her husband had borrowed

amounts from the respondent herein from time to time for

family    expenses   and   other   purposes   which    came       to

Rs.1,50,000/-.   When the respondent demanded the amount,

the appellant showed her inability to pay the said amount and

she made proposal to the respondent to join as a partner in

the proposed partnership firm to be commenced by her. The

respondent accepted for the same and the understanding

between them came into writing in the year 1988. However,

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the firm was dissolved before its formation.       Again, the

respondent demanded the money. At that stage, the appellant

had executed an agreement of sale in favour of the respondent

on 19.8.1991 agreeing to sell the plaint schedule property to

the respondent for a sum of Rs.1,50,000/- in lieu of discharge

of amount. The appellant had executed a General Power of

Attorney in favour of her son permitting him to execute the

sale deed on her behalf. However, she cancelled the sale deed

on 06.08.1992 without informing the respondent.            On

10.8.1992, the appellant got issued a notice demanding the

balance amount of Rs.50,000/- with interest @ 18% p.a. from

30.8.1986 and have the sale executed and registered.      The

respondent responded to the notice through her advocate

denying any liability of making the payment of Rs.50,000/-

and that time cannot be made the essence of the contract.

The respondent herein filed suit for specific performance of

contract of sale based on the sale agreement dated 19.8.1991.

On 8.2.2000, the trial Court decreed the suit and the

defendant was directed to execute and register the sale deed

within the time prescribed in the order.     Aggrieved by the

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said order, the appellant herein filed Appeal Suit No. 725 of

2000 in the High Court. On 19.10.2006, the learned single

Judge of the High Court dismissed the appeal suit. Against

the aforesaid judgment and order of the learned single Judge,

the appellant has preferred this appeal by way of special leave

before this Court.

4) Heard Mr. A.D.N. Rao, learned counsel appearing for the

appellant and Mr. I. Venkatanarayana, learned senior counsel

appearing for the respondent.

5)   The only point for consideration in this appeal is whether

the trial Court is justified in granting decree for specific

performance in respect of the suit property and the High

Court is right in affirming the same by dismissing the appeal

filed by the defendant.

6)   It is the specific case of the plaintiff that the defendant is

the absolute owner of the plaint schedule property by virtue of

a settlement deed executed by her grand-father on 06.11.1957

and the same is in her possession and enjoyment. Since the

plaintiff and defendant are related, the defendant had agreed

to sell the plaint schedule property to the plaintiff.         The

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defendant had borrowed amount from the plaintiff for her

family expenses and other purposes from time to time up to

an extent of Rs.1,50,000/-. When the plaintiff had demanded

the said amount from the defendant, she conveyed her

inability to pay the same. Instead of paying the amount to the

plaintiff, the defendant requested her to join as a partner in

the proposed partnership firm to be commenced by her. This

was accepted by the plaintiff. At this stage, according to the

plaintiff, the defendant had executed an agreement to sell in

her favour on 19.08.1991 agreeing to sell the plaint schedule

property. It is the definite case of the plaintiff that in the said

document, it is clearly recited that the defendant had received

the entire consideration on instalment basis and further

recited that the consideration was moved from the plaintiff to

the defendant. In the sale agreement, no specific period was

mentioned to register the document in favour of the plaintiff.

On the other hand, it was mentioned that whenever the

plaintiff made a demand to register the document, the

defendant has to register the same. It was her further case

that in spite of several demands, the defendant failed to

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comply with the same which necessitated her to file a suit for

specific performance and for possession of the plaint schedule

property.

7)     The defendant, in her written statement, admitted that

the plaintiff is the wife of the defendant’s senior paternal

uncle. Though execution of the agreement dated 19.08.1991

was admitted, it was stated that she innocently executed the

said agreement in favour of the plaintiff at the instance of

plaintiff’s son Kanakarao and plaintiff.              She denied all the

documents such as agreement dated 30.06.1986, partnership

deed    dated    25.09.1988       as     well    as    agreement      dated

19.08.1991      and special       Power    of Attorney deed           dated

19.08.1991. It was also her case that neither the defendant

nor her husband ever borrowed any amount for any purpose

from the plaintiff or her son.

8)     With the above pleadings, the Principal Senior Judge

settled the following issues for trial:-

      1.   Whether    the    plaintiff     is   entitled    for    specific

           performance      of    the     agreement        of     sale   dt.

           19.08.1991?

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    2.   Whether the suit sale agreement dt. 19.08.1991 is

         devoid    of   consideration       as    pleaded   by     the

         defendant?

    3.   Whether the plaintiff and her son were exercising

         their undue influence over the defendant and her

         husband in connection with the suit transaction?

    4.   Whether the plaintiff complied her part of the

         contract against the defendant?

    5.   Whether     the      suit   sale   agreement   has      stood

         rescinded      and     cancelled    as   pleaded   by     the

         defendant ?

    6.   Whether the plaintiff is entitled for possession of the

         plaint schedule property?

    7.   To what relief?

9)   Before the trial Court, namely, Principal Senior Civil

Judge, Vijayawada, three witnesses were examined as P.Ws 1

to 3 and Exh. A1 to A6 were marked on the side of the

plaintiff, whereas the defendant herself was examined as

D.W.1 besides examining D.Ws 2 and 3 and marking

documents Exh. B1 to B6.

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10)   By   judgment     and     decree     dated     08.02.2000,      on

consideration of the oral and documentary evidence, the

learned trial Judge accepted the case of the plaintiff and

granted decree for specific performance of agreement of sale

dated 19.08.1991.

11)   Aggrieved by the aforesaid decree of the trial Court, the

defendant filed an appeal being A.S. No. 725 of 2000 before

the High Court of Andhra Pradesh under Section 96 CPC. The

learned Single Judge determined the following issues for

consideration:-

     1.   Whether the defendant executed Ex.A-1 agreement

          of sale having received the entire sale consideration

          as mentioned therein?

     2.   Whether     the    plaintiff   is   not   entitled   for   the

          discretionary relief of specific performance?

     3.   Whether the plaintiff is entitled to costs awarded in

          the suit?

After analyzing the evidence let in by both parties and the

judgment of the trial Court, the High Court accepted the

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conclusion and confirmed the judgment and decree of the trial

Court and dismissed the appeal of the defendant.

12)   As mentioned earlier, both parties are related, namely,

the plaintiff is the paternal aunt of the defendant. Though the

defendant   had    denied   execution      of all   the   documents

including the suit agreement of sale as rightly pointed out by

the High Court, D.W.1 in her evidence has specifically stated

that she received Rs.1.00 lakh from the plaintiff out of the

total sale price of Rs.1,50,000/-.      She also stated that the

plaintiff has to pay the balance of Rs.50,000/- and interest

thereon at 18% p.a. to her.     It is relevant to point out that

because both the plaintiff and defendant are related, an

agreement Exh.B2 dated 30.08.1986 was executed wherein

the defendant agreed to sell her certain lands which remained

unsold.     They   also   entered   into    partnership    under       a

partnership deed Exh.B1 dated 25.09.1988 in and by which

both agreed to do business in partnership by constructing

apartments and sell them to third parties and share profits

equally. Exh. B2 to B5 support the same. However, since the

project was not materialized, D.W.1 executed the suit

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agreement of sale Exh.A1 dated 19.08.1991 in favour of the

plaintiff admitting that she had received Rs.1,50,000/-

towards sale consideration. In the light of the assertion of the

plaintiff that defendant had changed her stand, we also

verified the recital in the sale agreement as well as the

evidence let in by both parties. As rightly pointed out by Mr. I.

Venkatanarayana, learned senior counsel for the respondent,

now the defendant cannot be permitted to go against the

contents of a document, namely, Exh.A1 P.W.1 and her son

P.W.2 proved the contents of Exh.A1 as well as Exh.B2.

P.W.3, one of the attestors of Exh.A1, reiterated the specific

stand taken by P.Ws.1 and 2.        Though D.W.1 and D.W.2

denied in their evidence about the execution of Exh.A1 and

the amount mentioned therein, in the light of the recital in the

agreement of sale (Exh.A1) as well as Power of Attorney

(Exh.A6), the stand taken by the defendant is liable to be

rejected. It is too late a day for the defendant to contend that

the defendant did not receive the entire sale consideration.

13)   Another fallacy in the case of the defendant is that only

in the witness box, the defendant as D.W.1 altogether denied

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the sale consideration mentioned in Exh.A1.       On the other

hand, her earlier stand was that only Rs.1.00 lakh was

received and not Rs.1,50,000/- as stated in Exh.A1.          The

conflicting stand of the defendant has been rightly rejected by

the trial Court as well as the High Court.

14)   In Madhukar & Ors. vs. Sangram & Ors. , (2001) 4

SCC 756, three Judges Bench of this Court laid down

principles and parameters as to how first appeal is to be

disposed of. It is held that sitting as a Court of first appeal,

duty is cast on the Court to deal with all the issues and the

evidence led by the parties before recording its findings. The

principle enunciated in this decision is that the first appeal is

a valuable right and parties have a right to be heard both on

questions of law and on facts and the judgment in the first

appeal must address itself to all the issues of law and fact and

decide it by giving reasons in support of the findings. In the

case on hand, these principles have been fully complied with

by the High Court.

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15)   On considering the materials, we are satisfied that the

plaintiff has established her claim by placing acceptable oral

and documentary evidence and proved that in lieu of debt

amounting to Rs.1,50,000/- the defendant executed initially

Exh.B2 and later Exh.A1, agreements relating to the suit

property. We are also satisfied that it was the defendant who

failed to execute the sale deed and the trial Court has rightly

granted a decree for specific performance in favour of the

plaintiff which was affirmed by the High Court.

16)   In the light of the above discussion, we do not find any

merit in the appeal.    Consequently, the same is dismissed

with no order as to costs.

                                 ........................................J.                                  (Dr. Arijit Pasayat)

                                .........................................J. New Delhi;                       (P. Sathasivam) May 8, 2008.

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