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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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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