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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
Renuga & Another – Appellant
Versus
K.G. Chandran & Another – Respondent
S.A. No. 781 of 2013 & M.P. No. 1 of 2013
Decided On : 19-03-2015
Civil Laws – Specific Performance Of An Agreement Of Sale – First respondent herein K.G.Chandran had earlier filed a suit in O.S., on the file of the I Additional Subordinate Court, Erode, against the second respondent herein for specific performance of an agreement of sale. – The suit was decreed in favour of the first respondent herein – Thereafter, the second respondent filed an appeal, in A.S.No.76 of 2007, before the I Additional District Judge, Erode. – The same was dismissed on 26.6.2008, thereby confirming the judgment and decree of the trial Court. – As against the same, the second respondent filed the second appeal in S.A.No.183 of 2009 before this Court and the same was also dismissed on 6.7.2010. – Thus, the decree for specific performance granted in favour of the first respondent was confirmed. – Held, If court look into the facts, as Court already pointed out, of course, the appellants have proved that there was a joint family nucleus in the year 1981, under Ex.P1, but it is nowhere the case of the plaintiffs that the suit property was purchased out of the surplus income from the properties which were acquired by the second respondent under Ex.P9. – Therefore, in my considered opinion, the question of presumption that the suit property would have been purchased out of the joint family income cannot be raised at all. – What had been contended in the claim application is that the properties acquired, by the second respondent, under Ex.P9, were subsequently sold and the sale consideration was utilized for the purpose of purchasing the suit property. – This is essentially a question of fact. Two Courts below have held that there is no document to show that the properties acquired under Ex.P9 were sold subsequently. – Assuming that they were sold, it is not known as to for what amount they were sold. – It is also not in evidence that the said sale consideration was in any manner utilized for the purpose of purchasing the suit property in the name of the second respondent. – In the absence of evidence to prove these vital facts, Courts below were right in holding that the suit property was not an ancestral property. – As Court already pointed out, had it been the case of the appellants that there existed a joint family nucleus and that the joint family has surplus income and from out of the said surplus income of the joint family nucleus the suit property was purchased, then the burden would shift upon the first respondent herein to prove that the suit property was not purchased out of the joint family income. – All these considerations are not before me because of the specific stand taken by the appellants before the lower Court that the suit property was not purchased out of any surplus income from the joint family nucleus, but out of the sale consideration of the joint family property. – As rightly held by the Courts below, this fact has not been proved and therefore, the Courts below were right in holding that the suit property is only a self-acquired property of the second respondent and therefore, the decree in O.S.No.68 of 2003 is executable. – Courts below were right in holding that the said decree is a collusive decree and since the first respondent is not a party to the said suit, the said decree will not bind him. – Therefore, there is no legal impediment for the first respondent to execute the decree in O.S.No.68 of 2003. – Second Appeal Dismissed
1. The first respondent herein K.G.Chandran had earlier filed a suit in O.S.No.68 of 2003, on the file of the I Additional Subordinate Court, Erode, against the second respondent herein for specific performance of an agreement of sale. The suit was decreed in favour of the first respondent herein. Thereafter, the second respondent filed an appeal, in A.S.No.76 of 2007, before the I Additional District Judge, Erode. The same was dismissed on 26.6.2008, thereby confirming the judgment and decree of the trial Court. As against the same, the second respondent filed the second appeal in S.A.No.183 of 2009 before this Court and the same was also dismissed on 6.7.2010. Thus, the decree for specific performance granted in favour of the first respondent was confirmed.
2. Thereafter, the first respondent filed E.P.No.208 of 2008 before the I Additional Subordinate Judge, Erode, to execute the decree in O.S.No.68 of 2003. On transfer, it was dealt with by the II Additional Subordinate Judge, Erode. During the pendency of the same, the appellants herein filed E.A.No.51 of 2010, under Order 21 Rule 99 C.P.C, claiming that they had a share in the suit properties and therefore, the decree in O.S.No.68 of 2003 cannot be executed against the second respondent herein. The learned II Additional Subordinate Judge,Erode, by decree and judgment dated 31.1.2012 dismissed the E.A.No.51 of 2010. As against the same, the appellants filed an appeal in A.S.No.16 of 2012 before the learned Principal District and Sessions Judge, Erode. The same was dismissed by decree and judgment dated 8.10.2012. As against the same, the appellants have come up with the present second appeal.
3. I have heard the learned counsel for the appellants and the learned counsel appearing for the first respondent. The second respondent has remained ex-parte through out. I have also perused the records carefully.
4. The case of the appellants is as follows:
(a) The appellants are the children of the second respondent, who, according to the appellants, formed a Hindu joint family. According to them, in a family partition, which took place between the second respondent and his brother, some properties were allotted to the second respondent by means of a partition deed dated 17.7.1981, under Ex.P9. Thus, according to the appellants, the joint family had a necleus. The said properties, which were acquired by the second respondent in a family partition, were subsequently sold away and from out of the said sale consideration, according to the appellants, the suit property herein was purchased in the name of the second respondent. Thus, according to the appellants, the suit property is not the self-acquired property of the second respondent, but it is the joint family property, belonging to the second respondent and the appellants.
(b) It is the further case that the appellants filed a suit in O.S.No.905 of 2002, on the file of the Principal Subordinate Judge, Erode, against the second respondent herein for partition and for separate possession of their share. The said suit, which was filed on 17.12.2002, was decreed on 24.1.2003 as prayed for. As a matter of fact, it was an ex-parte preliminary decree passed in favour of the appellants, since the sole defendant in the suit, namely, the second respondent herein, remained ex-parte.
(c) Thereafter, according to the appellants, they filed a petition for passing a final decree and accordingly final decree was passed on 31.03.2005, under Ex.P2, thereby dividing the property by means and bounds in terms of the preliminary decree.
(d) Thereafter, to take possession, the appellants filed an execution petition and in execution of the said decree, the possession of the property was delivered to the appellants, on 13.4.2009. Thus according to the appellants, the second respondent is not the absolute owner of the suit property, as it is claimed by the first respondent and therefore, the decree in O.S.No.68 of 2003 is not executable, as the same
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