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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.M. NATARAJAN & THE HONOURABLE MR. JUSTICE THANIKKACNALAM
Minor Mangalam alias Badrakali and Others
Versus
Sudalaimuthu and Others
A.S. Nos. 891 and 942 of 1982
Decided On :Decided On : 10-10-1990
PARTITION - SUIT FOR - MAINTAINABILITY - NEXT FRIEND - MINOR PLAINTIFFS - NATURAL GUARDIAN - ALIENATION BY PARENTS - CHALLENGING - REPRESENTATION BY NEXT FRIEND - VALIDITY - O. 32, R. 3(1), C.P.C. - SPECIFIC PERFORMANCE - SALE AGREEMENT - FALSE RECITALS - EFFECT - LIS PENDENS - SALE BY VENDOR TO THIRD PARTY - EFFECT - PARTITION DEED - VALIDITY - INEQUALITY IN ALLOTMENT OF SHARES - CHALLENGE - MAINTAINABILITY.
Fact of the Case:
The plaintiffs in O.S. No. 23 of 1982, children of the first defendant in O.S. No. 29 of 1981, filed a suit for partition and separate possession and maintenance against their father, the first defendant, and the first defendant's father, the second defendant, who was also a party in O.S. No. 29 of 1981. The plaintiff in O.S. No 29 of 1981 is the third defendant, and the subsequent purchaser was added as the fourth defendant during the pendency of the suit.
Finding of the Court:
1. The suit instituted by the next friend on behalf of the minors is maintainable. 2. The finding of the lower court that the suit property is the separate property of the first defendant and not the joint family property is perfectly legal and correct. 3. The third defendant is entitled to the relief of specific performance on the basis of Ex. B8 agreement. 4. Ex. B4 partition and Exs. B17 and B18 mortgages are valid and binding on the plaintiffs and they have no right to challenge the same.
Issues: 1. Whether the suit filed by the plaintiffs in O.S. No. 23 of 1982 is liable to be dismissed on the ground of maintainability for the reasons stated by the learned counsel for the respondent/third defendant and consequently the appeals are liable to be dismissed. 2. Whether the finding of the trial Court that the suit properties including item 4 of the suit properties are not the joint family properties but separate properties of the first defendant is not sustainable for the reasons stated by the counsel for the appellants. 3. Whether the third defendant is not entitled to the relief of specific performance on the basis of Ex. B8 agreement for the reasons stated by the learned counsel for the appellants? 4. Whether the partition deed Ex. B4 and also the mortgages Exs. B17 and B18 are not binding on the plaintiffs and whether the plaintiffs are not entitled to the reliefs without setting aside the partition.
Ratio Decidendi: 1. A person who is of sound mind and has attained majority may act as next friend of a minor or a lunatic for the suit, provided that the interest of that person is not adverse to that of the minor or the lunatic. 2. The mere fact that the second defendant sold the property to the fourth defendant after attesting Ex. B8 agreement will not affect the case of the third defendant; but the sale in favour of the fourth defendant alone is hit by lis pendens. 3. Since the property is the separate property of the first defendant, it is not open to the plaintiff to challenge the said partition deed. 4. Though it is now contended that there is inequality in the allotment of shares, such contention was not put forward in the pleadings.
Final Decision: Both the appeals fail and stand dismissed with costs of the third respondent, namely, third respondent in A.S. No. 891 of 1932 and the first respondent in A.S. No. 942 of 1982.
K.M. Natarajan, J
1. These two appeals arise out of a common judgment rendered by the Subordinate Judge, Srivilliputtur, in OS. Nos. 29 of 1981 and 23 of 1982. The plaintiffs in O S. No. 23 of 1982 and the first defendant in O.S. No. 29 of 1981 are the appellants in both the appeals. O.S. No. 29 of 1981 was filed at the earliest point of time on 9-4-1979 as O.S. No. 119 of 1979 in the sub court, Ramnad for the relief of specific performance against the first defendant and his father, the second defendant, while the suit O.S. 23 of 1982 was originally filed as O.S. No. 279 of 1979 in the sub court, Ramnad, on 9-61979. Both the suits were transferred to the file of the sub court, Srivilliputtur, and they were tried jointly. O.S. No. 23 of 1982 is a suit filed by the children of the first defendant in O.S. No. 29 of 1981 for the relief of partition and separate possession and maintenance against their father, the first defendant, and the first defendants father, the second defendant, who was also a party in O.S. No. 29 of 1981. The plaintiff in O.S. No 29 of 1981 is the third defendant, and the subsequent purchaser was added as the fourth defendant during the pendency of the suit. For the sake of convenience, the array of parties in O.S. No. 23 of 1982 can be adopted in this judgment.
2. The case of the plaintiff in O.S. No. 29 of 1981 who was the third defendant in O S. No. 23 of 1982 filed against defendants 1 and 2 in both the suits, is that the suit property which is item 4 of the partition suit O.S. No. 23 of 1982 absolutely and exclusively belongs to the first defendant, and he and his father, the second defendant, agreed to sell the same to him for a valuable consideration of Rs. 59,000 and executed a sale agreement on 7-5-1978. The same was reduced into writing between the plaintiff and the first defendant who is the owner of the property. The second defendant acknowledged the same and attested the document. As per the sale agreement, the plaintiff paid a sum of Rs. 3,006 on the date of the agreement and subsequently another sum of Rs. Rs. 1,500 was paid on 14-5-1978 after getting endorsement on the back of the suit agreement. His further case is that he was and is always ready and willing to perform his part of the contract. Further, he has undertaken the responsibility of discharging the othi for Rs 21 000 and pay the balance and obtain the necessary document. But the first defendant was evading the same. Thereupon he issued notices on 20-8-1978 and 16-9-1978 through his lawyer calling upon the first defendant to execute the sale deed. He has sent a reply to the effect that bis father, the second defendant filed a suit against him for maintenance and as such, he is not prepared to execute the sale deed. Since the first defendant has arranged to sell the property to third party, the plaintiff has filed the suit for the relief of specific performance The second defendant is also added as a party as he has attested the document by acknowledging the sale agreement and he is estopped from denying the said agreemeut or the relief of specific performance and the agreement is binding upon him. Hence the suit.
3. The said suit was resisted by the firstdefendant and be filed a written statement atthe first instance wherein he has admittedthe execution of the sale agreement and heonly contended that since his father, thesecond defendant, filed a suit claiming rightover the property and claiming charge oventhe property for maintenance, he is not in aposition to execute the sale deed. Hewould further state that the plaintiff failedto pay the amount within the stipulatedtime and as such, he is not liabie to execute the sale deed. In the subsequenttwo additional written statements, hewould contend that the property in question is a joint family property in which hisminor son Ponmani Sankar who is the secondplaintiff in O S. No. 23 of 1982 is entitled toan undivided half share and the agreementof sale executed by him will not
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