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Abithambal (Died) vs Namasivaya Naicker (Died) on 12 February, 2020

S.A.No.230 of 1999

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 30.01.2020

Date of Verdict : 12.02.2020

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

S.A.No.230 of 1999
1. Abithambal (Died)
2. Annathurai
3. Radhakrishnan
4. Subramanian
5. Arumugham
6. Shanmugham
(Appellants 2 to 6
brought on record as
legal heirs of the deceased
sole appellant vide order
of the Court dated 03.02.2012
made in C.M.P.No.1769 of
2010 in S.A.No.230 of 1999) …Appellants
Vs.
1. Namasivaya Naicker (Died)
2. Unnamalaiyammal
3. Pachiyammal
4. Pannir
5. Saitu
6. Saker
7. Sangivi
8. Krishna Murthy
(Respondents 4 to 8
brought on record as
legal heirs of the deceased
first respondent vide order
of the Court dated 07.06.2017
made in C.M.P.Nos. 6397,
6398, 6399 of 2017 in
S.A.No.230 of 1999) …Respondents
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S.A.No.230 of 1999

Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree dated 20.11.1998, in A.S.No.67 of
1995 on the file of the Additional District Court, Tiruvannamalai, reversing
the judgment and decree dated 28.04.1995 in O.S.No.136 of 1998 on the
file of the District Munsif Court, Tiruvannamalai.

For Appellants : Mr.S.T.Bharath Gowtham
For Mr.T.R.Rajaraman

For Respondents
R1 : Died
R2 to R3 : Dismissed vide Court order
dated 04.12.2009
R4 to R8 : No appearance

JUDGMENT

This second appeal is directed as against the judgment and

decree, dated 20.11.1998, in A.S.No.67 of 1995 on the file of the

Additional District Court, Tiruvannamalai, reversing the judgment and

decree dated 28.04.1995 in O.S.No.136 of 1998 on the file of the District

Munsif Court, Tiruvannamalai.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial Court.

3. The case of the plaintiff in brief is as follows :-

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S.A.No.230 of 1999

3.1. The suit is filed for specific performance. The suit property

originally belonged to the plaintiff’s brother viz., Rayar Naicker and he

married the second defendant. Since the second defendant is impotent, he

filed divorce petition under Section 12(1)(a) of the Hindu Marriage Act in

O.P.No.21 of 1974 before the Sub Court, Tiruvannamalai, and the same

was allowed by the judgment and decree dated 10.09.1974 and declared

that the second defendant is not the wife of the said Rayar Naicker.

Thereafter, he married the first defendant in accordance with law. The

second defendant filed maintenance case in M.C.No.91 of 1980 under

Section 125 of Cr.P.C., against the said Rayar Naicker, and the same was

dismissed.

3.2. While being so, on 23.03.1985, the first defendant entered

into a sale agreement with the plaintiff, in which the first defendant

agreed to sell the suit property for the total sale consideration of

Rs.10,000/- and received a sum of Rs.2,500/- as advance from the

plaintiff. Again the second defendant filed a suit in O.S.No.356 of 1985 as

against the plaintiff and the first defendant and it was dismissed as not

pressed. The defendants 1 and 2 had executed the sale deed in favour of

the third defendant on 28.10.1985 and the said sale deed is not binding

upon the plaintiff. In this regard, the plaintiff caused notice to the
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S.A.No.230 of 1999

defendants on 10.11.1985. When the plaintiff is always ready and willing

to perform his part of contract, the first defendant failed to execute the

sale deed. Hence the suit.

4. Resisting the same, the first defendant filed written statement

and stating that originally the suit property belonged to one Rayar Naicker

and the defendants 1 2 and Rayar Naicker were lived together. Rayar

Naicker had executed a settlement deed in favour of the second defendant

on 21.07.1973 and thereafter, he also executed a Will in favour of the

second defendant on 14.08.1983. The second defendant filed

maintenance case in M.C.No.91 of 1980 with collusion of the said Rayar

Naicker. The first defendant also denied the allegation that she entered

into agreement for sale on 23.03.1985 and agreed to sell the suit property

to the plaintiff. The first and second defendant has sold out the suit

property to the third defendant by a registered sale deed dated

28.10.1985 and therefore prayed for dismissal of the suit.

5. The third defendant filed separate written statement stating

that there is no animosity between the husband of the third defendant and

the plaintiff and due to which, the third defendant had purchased the suit

property from the defendants 1 2. The third defendant had purchased
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S.A.No.230 of 1999

the suit property for the valid sale consideration of Rs.15,500/- as such

the third defendant is a bonafide purchaser without notice to the said

agreement. Therefore, prayed for dismissal of the suit.

6. On the side of the plaintiff, he examined P.W.1 to P.W.4 and

were marked Ex.A.1 to Ex.A.13. On the side of the defendants, they

examined D.W.1 to D.W.4 and were marked Ex.B.1 to Ex.B.4. On perusal

of the documents on record and on considering the oral and documentary

evidences adduced by the respective parties and the submission made by

the learned counsel, the trial Court dismissed the suit for the relief of

specific performance and decreed the suit in respect of return of advance

amount of Rs.2,500/-. Aggrieved over the judgment and decree of the trial

Court, the plaintiff preferred an appeal suit in A.S.No.67 of 1995 and the

first appellate allowed the appeal in respect of 1/4th share of the suit

property alone and directed the defendants 1 and 3 to execute the sale

deed in favour of the plaintiff. Aggrieved by the same, the third defendant

preferred this second appeal.

7. At the time of admission of the second appeal on 01.03.1999,

the following substantial questions of law were formulated by this Court

for consideration :-

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S.A.No.230 of 1999

“a) Is the learned Additional District Judge
correct in decreeing the suit based on Ex.A.3
when the same cannot be specifically enforced
against the minor and consequentially it was not
enforceable against the appellant?

b) Is the learned Additional District Judge
correct in decreeing the suit for specific
performance without considering the genuineness
of Ex.A.3 Sale agreement based on which the suit
is filed?”

8. The learned counsel appearing for the appellant/third

defendant submitted that the first defendant has absolutely no title over

the suit property to enter into the agreement of sale with the plaintiff,

since already the suit property settled in favour of the second defendant

by her husband Rayar Naicker, which was marked as Ex.B.4. Further a Will

was also executed in favour of the second defendant by her husband

dated 14.08.1983, which was marked as Ex.B.2. Therefore, the first

defendant absolutely has no power to enter into the sale agreement with

the plaintiff. To support of his contention, he relied upon the following

judgments :-

1. AIR 1969 Ker 316 – Kurian Chacko Vs. Varkey Ouseph

2. (2008) 10 SCC 497 – Jagdish Singh Vs. Madhurai Devi
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S.A.No.230 of 1999

3. (2001) 4 SCC 756 – Madhukar and ors Vs. Sangram
and Ors.

4. (2019) 2 SCC 727 – Jamila Begum (died) through LRs.

Vs. Shami Mohd (died) through LRs anr.

8.1. He further submitted that admittedly the first and second

defendant executed sale deed in favour of the third defendant and without

challenging the said sale deed, the suit itself is not maintainable. In fact,

the plaintiff also failed to prove his readiness and willingness to perform

his part of contract. Though the first defendant is the second wife of the

said Rayar Naicker, without the consent of the second defendant, the first

defendant alone cannot execute the sale agreement with the plaintiff.

Therefore, he prayed for dismissal of the suit filed by the plaintiff.

9. Heard Mr.S.T.Bharath Gowtham, learned counsel appearing

for the appellants/third defendant. Though notices served, no one

appeared on behalf of the respondents/plaintiff,defendants 1 2.

10. The suit is filed for specific performance, on the strength of

the agreement of sale entered into between the first defendant and the

plaintiff, which was marked as Ex.A.3 dated 23.03.1985. According to the

plaintiff, he entered into agreement with the first defendant to purchase

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S.A.No.230 of 1999

the suit property for the total sale consideration of Rs.10,000/- in which he

paid a sum of Rs.2,500/- as advance. Thereafter, the first and second

defendants executed sale deed in favour of the third defendant by the

registered sale deed dated 28.10.1985, which was marked as Ex.B.5.

When the plaintiff was ready and willing to perform his part of contract,

the first defendant failed to execute the sale deed as per the agreement

for sale dated 23.03.1985.

11. According to the third defendant, she is a bonafide purchaser

for valid sale consideration of Rs.15,500/- and the suit property was

purchased from the defendants 1 2 by the registered sale deed dated

28.10.1985. The third defendant contended that originally the suit

property belonged to one Rayar Naicker and he executed settlement deed

in favour of the second defendant in respect of the suit property by a

settlement deed dated 21.07.1973. Thereafter, he also executed Will in

favour of the second defendant on 14.08.1983. The third defendant

further contended that the first defendant never entered into the sale

agreement with the plaintiff to sell the suit property for the sale

consideration of Rs.10,000/-. The first and second defendants jointly sold

out the suit property in favour of the third defendant and the third

defendant is the bonafide purchaser of the suit property.
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S.A.No.230 of 1999

12. Admittedly, one Rayar Naicker got married with second

defendant thereafter, he filed divorce petition in O.P.No.21 of 1974 and

the same was decreed in his favour by decree dated 10.09.1974, which

was marked as Ex.A.1. Thereafter, the second defendant filed

maintenance case in M.C.No.91 of 1980. Even before the maintenance

case, the said Rayar Naicker executed settlement deed in favour of the

second defendant dated 27.07.1973. Though the settlement deed was

executed in favour of the second defendant, she filed maintenance case in

M.C.No.91 of 1980 and the same was dismissed. Even according to D.W.1,

the first and second defendants along with the said Rayar Naicker lived

together happily. Thereafter, the said Rayar Naicker also executed Will in

favour of the second defendant on 14.08.1983 and the same was marked

as Ex.B.2. It is also proved by the evidence of D.W.3.

13. Thereafter, the said Rayar Naicker got married with the first

defendant. Since the second defendant lost her right as legally wedded

wife of Rayar Naicker, the first defendant entered into an agreement for

sale in respect of the suit property with the plaintiff. Therefore, the second

defendant filed suit for declaration and possession in respect of the very

same suit property as against the first defendant as well as the plaintiff in

O.S.No.356 of 1985 before the District Munsif Court, Tiruvannamalai.
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S.A.No.230 of 1999

While pending the said suit, the first defendant executed agreement for

sale with the plaintiff and fixed 90 days time for execution of sale deed.

14. Further the first defendant gave birth to one son through the

said Rayar Naicker. After death of the said Rayar Naicker, the first

defendant got married with another person and gave birth to another son.

Therefore, she cannot claim any right over the suit property on the

strength of wife of the said Rayar Naicker, since already the property was

settled in favour of the second defendant. At the same time, the

agreement for sale also true. But the first defendant had absolutely no

title over the suit property to enter into the agreement for sale with the

plaintiff. Though the first defendant had no right over the property her son

born through Rayar Naicker has 3/4 the share over the suit property.

Therefore, on behalf of the said minor, the first defendant and the second

defendant executed sale deed in favour of the third defendant. In this

regard the learned counsel appearing for the appellant/third defendant

relied upon above said judgments and the principles of law outlined in the

above said decisions are taken into consideration and followed as

applicable to the case on hand.

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S.A.No.230 of 1999

15. Further, the plaintiff, the defendants 1 2 and their husband

Rayar Naicker are all relatives. The third defendant is being the adjacent

owner to the suit property, he purchased the suit property from the

defendants 1 2 for valid sale consideration. Therefore, the entire suit

has been foisted by the plaintiff only to nullify the said sale deed dated

28.10.1985, executed in favour of the third defendant. As such, the trial

Court rightly dismissed the suit insofar as the relief of specific performance

concerned and decreed the suit insofar as the advance amount paid by

the plaintiff and he is entitled to receive the same from the first

defendant. But unfortunately, the first appellate Court without considering

the Will and settlement deed executed in favour of the second defendant

by the said Rayar Naicker, decreed the suit in favour of the plaintiff that

too insofar as the 1/4th share of the suit property, as such this Court has

necessarily to interfere with the judgment decree passed by the first

appellant Court and the same is perverse and against the evidence on

records.

16. In view of the above discussion, this Court finds valid reason

to interfere with the reasonings and findings rendered by the first

appellate Court. Accordingly, all the substantial question of law formulated

by this Court are answered in favour of the third defendant and as against
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S.A.No.230 of 1999

the plaintiff. However the plaintiff is entitled for the advance amount

payable by the first defendant

17. In fine, the second appeal stands allowed and the judgment

and decree dated 20.11.1998, made in A.S.No.67 of 1995 by the learned

Additional District Judge, Tiruvannamalai, is hereby set aside and

consequently, the judgment and decree dated 28.04.1995 made in

O.S.No.136 of 1998 by the learned District Munsif, Tiruvannamalai, is

restored. There is no order as to costs.

12.02.2020
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order

rts

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S.A.No.230 of 1999

To

1. The Additional District Judge,
Tiruvannamalai.

2. The District Munsif,
Tiruvannamalai.

3. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.

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S.A.No.230 of 1999

G.K.ILANTHIRAIYAN, J.

rts

Judgment
in S.A.No.230 of 1999

12.02.2020

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