Purchasers not being party to preliminary decree need not file suit for setting aside the degree.

1. The substantial question of law that arose for consideration, while ordering notice of motion in this Second Appeal, was “Whether the Judgment and Decree in O.S.No.306 of 1986 is a nullity in so far as the plaintiff in the present action is concerned, in the absence of the present plaintiff having not sued for setting aside the decree in O.S.No.305 of 1986?”

2. The first respondent herein filed a suit in O.S.No.315 of 1986 against one M.Muthuswamy now deceased for specific performance of the agreement dated 14-3-1986 by directing the said M.Muthuswamy to execute the necessary sale deed in favour of the first respondent herein by accepting-the balance of sale consideration of Rs.35,000 and hand over vacant possession of the suit schedule property. According to the first respondent, the said M.Muthuswamy, was the sole defendant and after his death and after impleading of the present appellants, as well as respondents 2 to 4, was arrayed as first defendant, entered into the sale agreement dated 14-3-1986, in and by which, the first defendant agreed to sell the suit schedule property to the first respondent herein for a sale consideration of Rs.40,000 by, accepting a sum of Rs.5000 towards advance, that as per the agreement, the balance sum of Rs.35,000 had to be paid by the first respondent within a period of three months from the date of agreement, that the sale price was fixed taking into account the standing plantain crops and coconut trees as well, that though the first respondent was ready and willing to perform his part of the contract and get the sale deed executed, the first defendant was attempting to dispose of the property to some third parties, that therefore, the first respondent issued a legal notice dated 5-10-1985 inspite of which, the first defendant failed to execute the necessary sale deed, that on the date of execution of the agreement, the first defendant handed over the parent title deeds to the first respondent and therefore, the decree for specific performance should be granted.

3. To the said suit, the first defendant filed a written statement denying the various averments contained in the plaint and contended that the suit schedule property was a joint family property and therefore he had no right to sell the property individually. The said written statement was filed on 27.1.1987. It was also contended in the said suit that the first defendant had been restrained by orders of the Court from selling the property, though no details about the Court order was mentioned in the said written statement.

4. Subsequently, after the demise of the first defendant, the present appellants and respondents 2 to 4 resisted the suit. A written statement was filed on behalf of the present appellants on 23.4.1996 contending that no sale agreement was ever executed by the first defendant, that the suit property was worth over four lakhs as on that date and therefore no prudent man would have ever agreed to sell such a valuable property for a low price of Rs.40,000, that the first defendant was not the absolute and exclusive owner of the suit property, that as a matter of fact, a partition suit as between first defendant and the other defendants was filed and a decree has also been passed and that the decree as prayed for by the first respondent could not be granted.

5. The first respondent filed as many as seven documents-marked as Exs.Al to A7. While on behalf of the appellants, Exs.Bl to B3 were filed. On the side of the first Respondent, P.Ws.l and 2 were examined, while on the side of the appellants, first appellant was examined as D.W.1. The trial Court, on a detailed consideration of the evidence placed before it, held that Ex.A.1, the sale agreement was truly executed by the first defendant, that even after the receipt of Ex.A6 legal notice, the first defendant did not send any reply eventhough it was shown that under Ex.A7, the first defendant received the legal notice Ex.A6, that there was no accepta