Sambasiva Rao, J.
1. The plaintiff has preferred this appeal. He filed before the lower court in his bid for securing performance of an agreement of sale executed in his favour by the first defendant. He has now filed C. M. P. No. 1831 of 1974 to amend the plaint seeking performance of the agreement by the first defendant-respondent to the extent of the land to which he is entitled to with the stipulated price of Rs. 6,300/- per acre, in case he is unable to perform the whole of the agreement and for refund of the amount paid in excess to him, or in the alternative for refund of the entire amount of Rs. 15,000/- with interest at 5% per annum.
2. The plaintiff alleges: The agreement is Ex. A-1 dated 27th January, 1969 and is in respect of Ac. 5-10 cents. The first defendant (respondent No. 1) alone executed this agreement agreeing to sell the aforesaid land at the rate of Rs. 6,300/- per acre. The sale was to be completed by the end of May of that year after measuring the land. The transaction purports to have been entered into by the first defendant to discharge his antecedent debts and for acquiring other properties. The second defendant is his major son and both of them constituted the joint family. However, the land in question is either self-acquired or separate property of the first defendant. Rs. 1,000/- was paid on the date of the agreement. On 11th and 12th May. 1969, a further sum of RS. 14,000/- was paid and an endorsement to this effect was made on Ex. A-1 and the same is marked as Ex. A-30. Rs. 9,729.32 ps. was paid to the creditors of the first defendant directly on those dates and since the other creditors were not readily available the balance of Rs. 4,220.80 ps. was handed over to the first defendant for discharging those debts. Possession of the land was handed over to the plaintiff on the payment of Rs. 14,000/-. Thereafter the defendants failed to complete the transaction and execute a sale deed in his favour, though he was ready and willing to pay the balance and take a document. Hence he was obliged to seek performance from the Court.
3. The executant, viz., the first defendant, admits execution of the agreement, the existence of the debts, the need to sell the land to discharge them, the receipt of the two sums of Rs. 1,000/- and Rs. 14,000/- on the agreement and the discharge of his debts with the aid of those amounts He has debts to the tune of Rs. 12,000/- more to be discharged. His son, the second defendant, has become quarrelsome and cantankerous and is raising all sorts of objections to the debts and the proposed sale. The land in question is his self-acquired or separate property. He is ready and willing to complete the transaction according to the terms of the agreement. It is thus seen that the first defendant goes the whole hog with the plaintiff.
4. It is from the son the second defendant that the resistance to the suit comes. According to him Ac. 1-10 cents out of the land is his own separate property as it has been settled on his mother by her maternal aunt, with a life interest in herself. On his mother's death in 1951 he succeeded to the vested remainder and became full owner on the donor's death in 1964. The rest of the property, i.e., Ac. 4.00 belongs to the joint family of himself and his father, as it had been acquired by the latter after selling away Ac. 6-00 of land originally belonging to the family. In any case, that extent became a joint family asset as it had been thrown into the hotchpot by the first defendant.
5. The second defendant proceeds to aver that the mother died in 1951 and since then the father fell into bad ways like keeping women. For his immoral purposes he was incurring some debts-There have been serious disputes resulting in suits between him and the father for a very long time. Taking advantage of this estrangement, the plaintiff secured the agreement by fraud and playing deceitful and immoral tactics. The first defendant, to spite the second defendant, actively colluded with the plaintiff in bringing about Ex. A-1 which is not true. The alleged debts and the payments thereon are not genuine but concocted. In fact, the plaintiff had no means to purchase the property with such a large amount. There was no necessity for the father to contract debts and even if they were true they were not borrowed for the benefit of the family.
6. Before the lower court the parties adduced elaborate evidence. The first defendant gave him full and unqualified support to the plaintiff by not only filing a written statement practically conceding the plaintiffs claim, hut also went into the box as D. W. 2 to testify in plaintiff's favour. Nevertheless, the court below was pursuaded to believe the second defendant's version and evidence and it consequently dismissed the suit with his costs.
7. In the appeal before us. Sri Y. G. Krishan Murty. learned counsel for the appellants advances his arguments on the basis that the land of Ac. 5-10 cents which is the subject-matter of Ex. A-1 is joint family property; he in effect gives up the claim of the plaintiff and the first defendant that it is self-acquired and separate property of the latter. His second contention is that the plaintiff is entitled to specific performance. The lower Court itself has found that out of the alleged debts, those to the tune of Rupees 7,600/- were true. Learned counsel, endeavours to show that the other debts disbelieved by that court are also true. These debts coming to the total of Rupees 15,000/- are all antecedent debts. The first defendant as the karta of the family was entitled to sell the property for discharging such debts. The agreement and the circumstances of the case show that the plaintiff made due enquiries and the first defendant represented to him that he had pressing debts to discharge. Further, he himself paid the amounts to the creditors. So, he was fully justified in believing the need of the first defendant to sell the property. Consequently he is entitled to get specific performance. His third and last submission is based on the amendment petition which he has filed in the appeal. Learned counsel states that the plaintiff is ready to take even Ac. 4.00 of land at the rate of Rs. 6,300/- per acre. Even if that is not permissible, he is entitled to get refund of Rs. 15,000/- which the first defendant admits to have received and with the aid of which debts have been discharged.
8. We will take up the first point now. Despite the recital in Ex. A-1 the pleadings and the evidence to the contrary, it is now conceded, at any rate it is not disputed before us, that Ac. 4.00 is joint family property. That is also the case of the second defendant. So it is not necessary for us to find out whether that piece of land is joint family property or not. The only aspect which is debated before us is whether Ac. 1-10 cents is joint family property or not. It is common case that this land of Ac. 1-10 cents originally belonged to Venkatara-manamma the maternal aunt of the second defendant's mother. Under Ex. A-33, dated 4-8-1946 that lady executed a deed of gift in favour of the second defendant's mother Parvathamma after reserving the right to enjoy the income therefrom during her life. The vested remainder was conferred with absolute rights on the donee Parvathamma. There is also no dispute that Parvathamma died in 1951 leaving behind her only child the second defendant and her husband, the first defendant. It is also common ground that the donor died in 1964. As the law then stood in 1951 the second defendant as the only child and son of Parvathamma, succeeded to the vested remainderand on the death of the donor in 1964 became the absolute owner. The first defendant as the husband had no right to inheritance or succession as the law then stood. Consequently, the recital made in Ex. A-1 that some property (evidently meaning this Ac. 1-10 cents') out of the property under sale had passed to the first defendant with absolute rights by way of succession after the lifetime of his wife is a false one. That much is oractically conceded before us and appears to have been done so even before the lower court. That was why more than one patently untenable contentions were raised in the court below. In the first place, it was argued that Ex. A-33 was a benami transaction and that Parvatham-ma was merely a name lender and the real donee was the first defendant himself. In support of this contention reliance was placed on the circumstance that the original of Ex. A-33 was produced before the court by the first defendant. The lower court rightly rejected this contention as the second defendant, when the mother died, was only 15 years old and the donor Venkataramanamma, who had the life interest, was living with the family. Naturally as the only senior male member of the family the first defendant had the custody of the document. The motive for such benami transaction is not even indicated. There is no explanation why the maternal aunt of Parvathamma intended to give the property to the first defendant instead of to her own niece. Therefore, it can be unhesitatingly concluded that this contention relating to benami transaction is wholly unfounded. Since Venkataramanamma continued to live with the family till her death in 1964 naturally this property was also with the family. It is in evidence and that has been accepted by the Court below that the first defendant walked out of the house soon after the death of Venkataramanamma.
9. The second attempt is that in any event the second defendant should be deemed to have treated this item also as the joint family property as he had allowed it to be merged with the other property. This submission is persisted before us also. Our attention is invited to the evidence of the second defendant as D. W. 13 and the averments in his written statement and from them the learned counsel endeavours to spell out that he had admitted that this property also is joint family property. This endeavour, in our opinion, is an exercise in futility. In the written statement as well as in evidence, the second defendant takes the categorical stand that this Ac. 1-10 cents is his separate property. The passages referred to by the learned counsel relate only to the claim of the first defendant that the property under sale(Ac. 4-00) is his self-acquired and separate property. Again and again the second defendant asserted that it is joint family property. These assertions cannot be torn out of their context and from the background in which they have been made and be utilised as admissions on his part. There is no such admission; on the other hand the categorical assertion is that Ac. 1-10 cents is the second defendant's separate property. Further it is preposterous to say that the second defendant has treated this piece of land also as part of the joint family property. Till 1964 Venkataramanamma. the life estate holder was alive and she was entitled to the enjoyment of the land. As found by the lower court the father and son did not live together after the lady died in 1964, Therefore, it is meaningless to say that the second defendant threw this Ac. 1-10 cents into the hotchpot. We can, therefore, safely conclude that Ac. 1-10 cents out of Ac. 5-10 cents is the separate property of the second defendant and the first defendant has no manner of right to deal with it. The result, is that only Ac. 4-00 is joint family property. The first point is answered accordingly.
10. The second contention is that the plaintiff is entitled to specific performance. To buttress this claim it is argued that the agreed sale was mainly for discharging debts. The lower court itself found that they are true to the extent of Rs. 7,600/-. Learned counsel argues that the other debts which had been discharged with the aid of the funds paid by the plaintiff but disbelieved by the court are also really true. That being the case, the plaintiff paid on the agreement a large sum of Rs. 15,000/- which was utilised by the first defendant for discharging the debts. This circumstance will entitle the plaintiff to secure specific performance of the agreement. The debts evidenced by the following promissory notes have not been accepted by the Court below; Exs. A-28, A-29, A-26. A-13, A-2, A-15, and A-16 and finally Ex. A-12. It is maintained that all these debts have been truly borrowed by the first defendant for purposes binding on the plaintiff as well. Ex. A-28 is a promissory note dated 14-3-1961 for Rs. 2,000/- in favour of P. W. 5, Ex. A-38 purports to show that the debt was discharged on l5-5-1969 by payment of Rs. 2.700/-. The recital in Ex. A-28 is that the sum of Rs. 2,000/-was found due by the first defendant after verifying the accounts till that day of the amounts borrowed by him previously in instalments. The purpose is meeting family and agricultural expenses-What exactly were those family and agricultural expenses is not specified. The payee P. W. 5 however, admitted that ail the previous borrowings were not underpromissory notes but were only by way of hand loans. Why he did not take promissory notes was not explained by him. Contrary to the recital in the promissory note he deposed that he paid Rs. 400/- in cash on the date of the promissory note and the balance had been paid in instalments before that date. Ex. A-28, however, shows that all the amounts had been borrowed earlier. Thus, there is a material discrepancy between the note and the payee's evidence. The payee did not remember how much he paid in various instalments. As an afterthought he added that he paid Rs. 600/- and Rs. 500/- in instalments. Even they do 'not come to Rs. 2,000/-. What is more damaging is his clear statement that he had not paid any other amounts. He admitted that he had not taken receipts for those amounts and noticed those payments anywhere. Thus, the evidence of P. W. 5 makes the borrowing unbelievable. Evidently he came to help the plaintiff and the first defendant because he was on friendly terms with the first defendant for 15 or 16 years. He also knew the plaintiff for the same period and he was in the habit of consulting him. He added that the amount as per Ex. A-38 was paid to him in the presence of the plaintiff. This is contrary to the plaintiff's case because he handed over Rs. 4,000/- and odd on 12th May. 1969, because the other creditors were not available and to requested the first defendant to discharge the debts. This payment was made on 15th May, 1969, and so the plaintiff could not have been present. The witness also admitted that there had been disputes between the two defendants about the houses, lands and sites for five or six years and they related to the division of properties. This evidence caused quite a good deal of damage to the case of the plaintiff and the first defendant. We are not, therefore, inclined to believe the borrowing under Ex, A-28.
11. Ex. A-29 is a promissory note dated 10-2-1967 executed in favour of P. W. 6 for Rs. 600/-. Ex. A-39 dated 12-5-1969 is the endorsement of discharge on payment of Rs. 762.40 ps, P. W 6 the payee is no other than the brother-in-law of P. W. 5, the promisee under Ex. A-28. Therefore, a suspicion naturally arises that the plaintiff and the first defendant invoked the services of P. Ws. 5 and 6 and others who were related to each other for bringing into existence false promissory notes. Once again there is a material discrepancy between the recital in the promissory note and the evidence of P. W. 6. The note says that the amount was borrowed on that day. But, P. W. 6, says even in examination-in-chief that the first defendant borrowed from him and later he took the promissory note. So the evidence is not certain about the date of borrowing. The promissory note merely says that the debt was incurred for family expenses without specifying what they were, There is no evidence to show whether the purposes were binding on the family. P. W. 6 said that the first defendant alone paid him the amount at the time of discharge. The discharge was on 12-5-1969 and it is the plaintiff's case that on that day he was present when the debts were discharged. So. this statement is contrary to the plaintiff's case. Even the amount paid at the time of discharge was not specific?lly mentioned by the witness: he merely stated that he had been paid more than Rs. 720/- and less than Rs. 730/-. The witness admitted that either before or after Ex. A-29 he did not lend to the first defendant. In further cross-examination he made the position much worse by saying that two months earlier than the promissory note the first defendant had taken it as hand loan. So, this is quite contrary to the recital in the promissory note. The with is did not even know the attestor nor did he see anybody signing on the endorsement. There is no wonder then that the suggestion was made to him that Ex. A-29 with Ex. A-39 endorsement was brought into existence in view of the disputes between the two defendants. For these reasons we cannot believe the borrowing under Ex. A-29.
12. Ex. A-26 is promissory note for Rs. 300/- in favour of P W. 7. Ex. A-40 is the endorsement of discharge dated 12-5-1969. P. W. 7, is the payee and he is no other than the brother of P. W. 6, As we go deeper into the case, the suspicion deepens that all these so-called payees were pressed into service to concoct false promissory notes. The same person wrote the endorsements of discharge on Exs, A-29 and A-26 as well. The promissory note recites that it was executed at Poondla. But, the payee belongs to Peturu. It is amazing that the creditor went to the debtor to advanje this loan. The payee admitted that he had not lent to any other person excepting to a Potor prior to Ex. A-26. So, even his capacity to advance this amount is doubtful though he claimed that the Potor had paid him these three hundred rupees So, this debt also is highly doubtful and cannot be accepted.
13. The next debt is evidenced by the promissory note. Ex. A-13, dated 20th of August. 1967. for Rs. 125/-. Here also the recital is that the borrowing was for family expenses without specifying the actual need. Ex. A-41 is the endorsement of cancellation dated 11-5-1969 and it recites that the debt was discharged by payment of Rs. 150/- through the plaintiff, who had purchased the land. P. W.8 is the Payee. He admits that there was criminal cases between him and the second defendant, as the latter had filed a criminal case against him and 20 or 25 others alleging that they had assaulted him. The plaintiff is related to him. Apart from this interestedness his evidence is very unnatural because even though he belongs to the same village he said that he did not know whether the first defendant was living in the village and whether the relations between the father and son were amicable or not. It is thus manifest that this witness, who is a relation of the plaintiff and an enemy of the second defendant was pressed into service as a false creditor. Consequently, this debt cannot be believed.
14. Now we will take up Ex. A-2, a promissory note of 12th August, 1965 for Rs. 800/- The purpose of borrowing which is recited in it is to meet the expenses of litigation. The payee is P. W. 10 and he belongs to Vaddeswaram in Guntur Taluk. But the promissory note was executed at Poondla which is in Bapatla Taluk, It, is surprising that the witness had gone all the way to Poondla to lend money to the first defendant. Ex. A-43 is the endorsement of discharge made in 1960. Earlier the debt was kept alive by making some nominal payments. Even in examination-in-Chief he admitted close relationship with the first defendant's nephew and because of that relationship he advanced the loan. He did not even renumber the scribe of Ex. A-2 or Ex. A-43. His capacity to lend is also doubtful because he had sold away moot of his land seven years earlier. In any case it is not possible to rely on his evidence and accept the debt. So, this debt also should be rejected.
15. Exs. A-15 and A-16 are promissory notes for Rs. 500/- each in favour of P. W. 13. The first was executed on 10-4-1966 and the second on 2-8-1966. After the payee's death both were renewed in favour of P. W. 13, the son under Ex. A-17 on 6-2-1969. Though the promissory note says that it is renewal, Ex. A-17 by itself does not show that it is a renewal. Ex. A-48 is the endorsement of discharge dated 11-5-1969. If Ex. A-17 was really a renewal of earlier debts, one would expect the parties to take advantage of that fact and state it in me promissory note as disputes had already been raging between the father and son. However, the recital in the note is that the sum of Rs. 1,560/- was borrowed on that day in cash for family expenses It is very much stressed before us that P. W. 13 is a well to do gentleman hailing from a pious and charitable family which had been responsible for constructing a temple and a High School in the village and so he had no need to utter lies in the witness-box. But, several suggestions were made to this witness to create a strong impression that he was deposing in favour of the plaintiff and the first defendant because of the factions in the village. It was suggested to him, though he denied it, that he was an active participant in the village politics, that the second defendant was a follower of the opposite faction led by the Sarpanch and the first defendant belonged to the faction of the witness. He was also unable to deny the suggestion that the first defendant was storing paddy in their godowns to cause loss to the second defendant and that his father was aiding the first defendant by selling away that paddy and paying the amount to that defendant. It was also suggested that the second defendant obstructed the tractor of the witness when he was trying to cultivate the land belonging to the defendant's family. He merely said that his driver did not inform him about any such incident. It is unsafe in the light of this evidence and the recitals in the promissory note to accept it as a true debt.
16. Now remains Ex. A-12 of 15-11-1965 for Rs. 500/- in favour of one Nagisetty Koteswara Rao. A sum of Rs. 500/- is said to have been borrowed thereunder to discharge earlier debts taken from the same creditor. The endorsement of cancellation is Ex. B-4 dated 11-5-1969. The payee was not examined but an attestor was put into the box as P. W. 21. He was also an attestor on Exs. A-2 and A-11 and he did not know the purpose for which the debts were borrowed. He could not say whether Ex. A-2 was earlier or Ex. A-12 was earlier, he deposed quite contrary to the recital in Ex. A-2 as to the purpose of borrowing. Even though he belongs to the same village and his house is only about 100 yards away from the house of the defendants, he disclaims knowledge as to whether any disputes had arisen between the two defendants. He admitted that he was one of the respondents in security proceedings that arose between the first defendant and the second defendant. He was not able to deny that he, the first defendant and others were respondents in one case and the second defendant and others were respondents in another case, It was thus clear that he was a partisan of the first defendant and was pressed into service to attest on the three promissory notes. Consequently we are not prepared to uphold this debt either.
17. Thus we have every reason to agree with the trial court in disbelieving all these debts. Further, the need of borrowing was vaguely mentioned in all of them as family purpose excepting in one case that it was borrowed for meeting the litigation expenses. In the absence of any evidence as to what the family purpose was it is not possible tobind the second defendant with all these debts.
18. We may here consider the question whether the debts which were found to be true by the trial court which are to the extent of nearly Rs. 7,600/-are binding on the second defendant. The Second defendant alleged that they wtre immoral and Avyavaharika debts. Though the lower Court held that there was no evidence to show that the father had incurred these debts for his immoral life, it held that they were all Avyavaharika debts. Learned counsel for the second defendant (respondent No. 2) denies the liability of his client for these debts, though they might have been originally incurred by the first defendant, for two reasons. One is that they are Avyavaharika debts and the other is that the first defendant had sufficient means to discharge them with his own resources. Now are these two grounds tenable In regard to the nature of the debts the first defendant as D. W. 2 said this:
'I was forced to borrow during the period 1965-67 due to the existence of criminal proceedings and civil suits between me and my son.'
Practically all the debts which have been found to be true by the court below were incurred during this period. There is no dispute as to the nature of the civil suits and criminal proceedings that took place between the father and son at that time. The father claimed all the properties as his self-acquired and separate assets. It may be noted here that there were no other properties belonging to the family, though the first defendant had been earlier bequeathed 5 1/2 acres of land by Parasuramayya, husband of Venkataramanamma. Those he claimed as his separate properties and there does not appear to have been any dispute in respect of them between the father and the son. The quarrel between them was patently about the four acres of land which had been purchased by the first defendant after selling away his paternal estate and Ac. 1-10 cents to which the second defendant succeeded. Even this property was claimed by the first defendant as his own, trying to totally disinherit the second defendant. He leased out land. Ac. 5-10 cents in ,.xtent to his sister's sons and they filed a suit for injunction against the second defendant complaining that he was interfering with their possession. That was the civil litigation which the parties had between 1965 and 1967. The first defendant would have it that he borrowed these monies to finance the litigation of his nephews who were set UP as the lessees. The evidence discloses that the second defendant was beaten and he launched criminal proceedings against the father and others. Therewere also security proceedings. It is thus manifest that the civil and criminal actions were essentially between the father and the son through which the first defendant tried to assert his exclusive rights to the property denying to the second defendant all interest in them. Even Ac. 1-10 cents which came to the second defendant was claimed by the first defendant. It is now conceded before us that Ac. 4-00 out of Ac. 5-10 cents is joint family property and we have held that Ac. 1-10 cents is separate property of the second defendant. So, briefly stated the civil and criminal litigation at that time for which the debts were borrowed was for the purpose of denying the second defendant his legitimate right and share for asserting the unholy exclusive right of the 1st defendant. If such debts are to be; held to be binding on the son also, it would be perverting the very legal process. To put it mildly, to make the son liable for the debts incurred by the father for defeating his legitimate rights is something opposed to all public morals and decency in life. If law is not concerned with public morality and decency in life, then it loses all moral authority to govern the rights of citizens. No court of law and justice can be a party to such a position. Avarice, unfilial and unnatural anger against his only child and ;on, and immorality are writ large on these debt transactions. After all what is an Avyavaharika debt Colebrooke defined it as a liability incurred for a cause repugnant to good morals. If it is unrighteous or wholly improper they cannot be called vyavaharika or legal debts. It may be that the debts incurred by the father for defending himself against criminal action against others or defending himself in an action brought by others are legal in several circumstances. If a debt was incurred to defend the rights of the family and to safeguard its interests, it is certainly legal in nature. If a debt is not tainted with illegality at its inception it may be binding on the son. The son may not be able to claim immunity from the debts in such cases. But, where the father's conduct which prompted the incurring of the debt, is utterly repugnant to good morals or is grossly unjust or flagrantly dishonest, then certainly the son can claim immunity from its liability. The learned author Mulla of Hindu Law (at pp, 350 and 351 in l3th edition) places any debt which is avyavaharika which is rendered by Colebrooke as equivalent to a debt for a cause 'repugnant to good morals'' in the list of Avyavaharika debts. It is further stated that the fundamental rule is that the sons are not liable for the debts incurred by father which are Avyavaharika. Colebrooke translates it as 'debts for a cause repugnant to good morals.' Aparaka explainsit as not righteous or proper. In Jakati v. Borkar, : 1SCR1384 the Supreme Court observed that the translation of the term given by Colebrooke may well be taken to represent its correct meaning and that the term did not admit of a more precise definition. In Ramasubramania v. Sivakami Ammal, AIR 1925 Mad 841, Venkatasubba Rao, J., speaking for the Division Bench stated the view that it was not essential for the son to prove criminal liability against the father in respect of the debt in question in order to claim exemption from payment of such debt. The learned Judge pointed out that the son can claim immunity only when the father's conduct is utterly repugnant to good morals or is grossly un-iust or is flagrantly dishonest. This decision was referred to by the Bombay High Court in Govindprasad v. Raghunathpra-sad, AIR 1939 Bom 289 (FB). The Full Bench held that Avyavaharika debt means illegal, dishonest or immoral one. It is not essential for the son to prove criminal liability of the father in order to claim exemption. So, where a person in possession of property, to which he is not entitled, disposes of that property and deprives the rightful owner of that property, his conduct is dishonest and the son is not liable for the debts arising out of such conduct. The debts in question now were more dishonest and the son is not liable for the debts arising out of such conduct. The debts in question now were more dishonest and unethical than the one in Govinda Prasad's case (Supra) because they were incurred by the father to defeat the legitimate rights of his own son whom he now seeks to bind. We cannot conceive of a graver Avyavaharika debt than this. Consequently we have no hesitation in agreeing with the lower Court in holding that these debts, though they were incurred by the father and in that sense true, are Avvavaharika debts and were not binding on the son the second defendant.
19. Moreover the contention of the learned counsel for the son that the father had sufficient means of his own to discharge those debts and it was not necessary for him to' sell the property for that purpose does not appear to be unwarranted. In the first place, he had 5 1/2 acres of land of his own which had been bequeathed to him by Parasura-mayya. This, the first defendant himself admitted in his evidence. Secondly, he was exclusively enjoying the income from the suit properties of Ac. 5-10 cents right upto May, 1969, when he handed over the possession to the plaintiff under Ex. A-1 He had leased them out to his sister's sons who had filed the suit for injunction against the second defendant. So the first defendant was getting the rent from this Ac. 5-10 cents. There isno evidence on record, excepting the ipse dixit of the first defendant, that he had sold away the land which had been bequeathed to him by Parasuramayya. So, he must have been getting the income therefrom. It is not, therefore unreasonable to hold that the first defendant had the means to discharge the true debts which are to the tune of Rs. 7,600/- with his own funds end there was really no need for selling these lands.
20. Now the question is whether the plaintiff is entitled to specific performance of Ex. A-1. The purpose of the proposed sale is to discharge the debts and to acquire other properties. Then is no evidence of any attempt of the first defendant to acquire other properties. In fact, he alleges that he had other debts to the tune of Rs. 12,000/- in addition to the liabilities which he had discharged with the aid of Rs. 15,000/- received from the plaintiff. So what would be left after discharging the debts will be precious little. Obviously, the recital as to the purchase of property also was made to introduce in Ex. A-1 the element of family benefit. We have already found that majority of the debts were not true and that even the true debts were Avyavaharika and not binding on the second defendant and that in any case the first defendant himself had independent means for discharging those debts. So there was really no necessity for selling the property. The recital itself is false. The plaintiff who is no other than the first defendant's elder brother's son, must have been in the know of things. He had been a Policeman and was purchasing and selling properties. So, it can be safely assumed that he is a worldlywise person. It was well known that right from 1964 the first defendant altogether abandoned the second defendant after the death of Venkataramanamma. It is preposterous to say that the plaintiff did not know of the civil and criminal proceedings which were going on between the father and the son. What is more, those proceedings were in respect of these very lands. The second defendant in his evidence alleged that the plaintiff was actively supporting the first defendant in all these unholy activities. Be that as it may, could it be imagined even for a minute that the plaintiff did not know the serious troubles between his own paternal uncle and his son It is impossible to give credence to the plaintiff's alleged innocence and ignorance of these matters. In any case, when he proposed to purchase these lands, he should have made enquiries and have come to know of the second defendant's claim to the property. And yet he chose to purchase the lands and did so without joining the second defendant. What is worst, the plaintiff took Ex. A-1 with the recital that the land of Ac. 5-10cents was either self-acquired property or the separate asset of the first defendant. How the plaintiff believed that the land was the self-acquired property of the first defendant passes our comprehension. Particularly revealing of the unholy alliance between the plaintiff and the first defendant is the recital in Ex. A-1 that some property which was under the sale had passed to the first defendant with absolute rights by way of succession after the lifetime of his wife. This was with obvious reference to Ex. A-33 which the plaintiff himself produced. So, he must have looked into that gift deed. How the plaintiff thought, as the law then stood, that the first defendant inherited the property of his wife with absolute rights when she had left behind her her son, the second dtfendant is wholly inexplicable. All this demonstrates beyond any doubt that the plaintiff actively colluded with the first defendant in bringing about Ex. A-1 in order to defeat the rights of the second defendant. We have already found that in Ac. 1-10 cents the first defendant had no manner of right and the other four acres are joint family properties. In fact, the arguments advanced by the plaintiff's counsel before us have proceeded on that basis. Such being the case, when the plaintiff chose to take the agreement of sale from the first defendant alone it shows that he entered into the transaction only to support the cause of the first defendant. In furtherance of that scheme, they referred to the debts and brought into existence several false debts as well. That the plaintiff was an active participant in this is seen from several endorsements on the promissory notes that the payments had been made through him.
21. It is also possible to hold that Ex. A-1 was ante-dated. May be. the plaintiff examined the scribe and two of the attestors on the agreement and the scribe and two attestors on Ex. A-39. an endorsement on Ex. A-1showing payment of Rs. 14,000/-. Obviously, there were factions in the village as we have already pointed out while considering the evidence of P. W. 13 and so it could not have been difficult for the plaintiff and the first defendant to secure witnesses. However, there are certain strong features which would indicate that Ex. A-1was ante-dated. P. W. 4 an attestor on Ex. A-1 said this even in examination-in-chief; 'I am the 5th vendee under Ex. A-35. That purchase was prior to Ex. A-l'. He reiterated in cross-examination 'After registration under Ex. A-35 1 attested Ex. A-1 at home. Ex. A-35 was registered on 6th June, 1969. Registration of Ex. A-35 was earlier than the execution of Ex. A-l. I cannot say how long after registration of Ex, A-35, I attested in Ex. A-l'. The Court then recorded 'Witness again stated that 2 or 3 months after registration of Ex. A-35. he attested in Ex. A-l'. 6-6-1969 is not only the date of registration of Ex. A-35 but also of its execution. Under Ex. A-35, the witness, the plaintiff and some others purchased some lands. Consequently P. W. 4 was fully acquainted with Ex. A-35 and he was also one of the attestors on Ex. A-l. Ex. A-1the suit agreement, bears the date of 27th January. 1969. Going by the evidence of P. W. 4 it is quite manifest that it was brought into existence 2 or 3 months after 6th June, 1969, when Ex. A-35 was executed and registered. The plaintiff himself examined as P. W. 1 did not lag behind. He clearly stated in examination-in-chief itself 'by the date of Ex. A-1 contract sale I had property covered by Exs A-61, A-62 and A-35.' Thus even he admitted that Ex. A-1was later in point of time to Ex. A-35 which was executed on 6-6-1969. These admissions of the plaintiff himself and P. W. 4. an attestor on Ex. A-1do not leave any doubt that Ex. A-1was antedated. There is yet another indication that Ex. A-1was ante-dated. On 1-5-1969 the plaintiff sold under Ex. A-62 his properties for Rs. 20,000/-- The purpose for which the sale was made, as recited in the document, is for investing the money in business. It is indeed very significant that there is no reference at all in it to the contemplated purchase of lands from the 1st defendant. Had Ex. A-1been in existence from January. 1969, the plaintiff would certainly have mentioned about it for more than one reason. On his side he had minor sons and in order to bind them he would have taken care to state in the sale deed that he was selling the lands for the purpose of purchasing some others so that the family is benefited. Secondly it would have given more strength to Ex. A-1in view of the disputes which the vendor, the 1st defendant, was having with his son, the 2nd defendant. It is now the plaintiffs' case that he utilised the sale proceeds under Ex. A-62 to pay the 1st defendant and yet the recital was not there in Ex. A-62. This circumstance further reinforces the contention that Ex. A-1was ante-dated. We are not here concerned with what purpose the plaintiff and the 1st defendant had ante-dated it. But the fact remains that it is not a true document, in the sense, that it was not executed on the date it bears.
22. What we have discussed above demonstrates in full measure that the agreement of sale is shrouded by highly suspicious features and circumstances. The cumulative effect of all the circumstances we have noted above is to leave an indelible impression on our minds that Ex. A-1was thought of by the plaintiff and the 1st defendent not as a true saletransaction but for defeating the rights of the 2nd defendant. How can we grant specific performance of the agreement when the claim of the plaintiff is be-devilled by such features ?
23. Specific performance is a discretionary relief as declared by Section 20(1) of the Specific Relief Act. The Court is not bound to grant the relief merely because it is lawful to do so. At the same time, the section cautions that the discretion of the court is not arbitrary, That discretion has to be sound and reasonable and should be guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of the section enumerates a few illustrations where the court may properly exercise discretion not to decree specific Performance. Clause (c) thereof says that where the defendant entered into the Contract under the circumstances which though not rendering the contract void-abli makes it inequitable to enforce specific performance is one such instance. The plaintiff and the 1st defendant made false recitals in the agreement not only about the right and title in the property under sale, but also about the debts for the discharge of which it was entered into. The parties did not hesitate to enter false pleas and adduce false evidence in repaid to the title and other features. The agreement itself was ante-dated. In there circumstances, we are firmly of the opinion that this is a case where specific performance should be refused. We are reinforced in this conclusion by the following decisions; Satyanarayana v. Yelloji Rao, : 2SCR221 : Subbarayudu v. Tatayya. 19157 Mad WN 1158 and K. Venkatasubbavya v. K. Venkateswarlu, : AIR1971AP279 . Agreeing with the trial court, we reiect the contention seeking specific performance. Thus, the suit as originally filed fails.
24. There is. however, a new relief sought in C. M. P. No. 1831 of 1974 filed in this court. The relief that is sought in the petition is to amend the plant seeking performance of the agreement by the 1st defendant-lst respondent to the extent of the land to which he is entitled to with the stipulated price of Rs. 6,300/- per acre, in case he is unable to perform the whole of the agreement and for refund of the amount paid in excess to him, or in the alternative for refund of the entire amount of Rs. 15,000/- with interest at 5% per annum. The amendment in regard to the refund is not seriously opposed by the respondents. Section 23 also provides that liquidation of damages is not a bar to the specific performance. So, we grant this amendment.
25. Allowing the amendment is one thing and granting the relief thereinis another. The first relief sought is in regard to specific performance of the agreement to the extent to which the 1st defendant is capable of We cannot grant this prayer not only for the reason that Ex. A-1 is a collusive document brought into existence by the plaintiff and the 1st defendant, but also for the reason that even the four acres of the land is not the exclusive property of the 1st defendant. It is the joint property of the two defendants. Therefore, we reject this relief in regard to specific performance, even in respect of the four acres or even in regard to the share which the 1st defendant might get in the four acres if partition takes place.
26. Then remains the relief for refund of the amount of Rs. 15,000/- with interest at 5% per annum. Certainly no such decree can be passed against the 2nd defendant-2nd respondent in view of our finding that some of the debts incurred by the first defendant could have been discharged with his own resources and the other debts were fictitious ones. By no stretch of law or equity the 2nd defendant could be mulcted with the responsibility of refund. However, there cannot be any objection for granting such a relief against the 1st defendant alone since he clearly admitted at every stage the receipt of Rs. 15,000/-. So, we pass a decree against that defendant alone for the amount of Rs. 15,000/- with interest at 5% per annum from the dates of their payment. At the same time we must also give another direction. It is the admitted case of the plaintiff and the 1st defendant that the plaintiff was put in possession on 12-5-1969 when he paid the second instalment of 14,000/- thus depriving the 2nd defendant of the benefit of the income. Therefore, he is liable to account to the 2nd defendant for his separate property of Ac. 1-10 cents and for his half share in the rest of the land from 12-5-1969. On an application to be filed by the 2nd defendant, the lower court shall ascertain this amount and on such ascertainment the 2nd defendant shall be entitled to recover that amount from the plaintiff. The decree of the lower court is amended only to this extent. In other respects, the appeal is dismissed. The 2nd defendant-2nd respondent will have his costs from the plaintiff and the plaintiff and the 1st defendant-1st respondent will bear their own.