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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.RAVINDRAN, J.
M. Palaniappan and Ors. – Appellants
Versus
Nachimuthu – Respondent
S. A.No.126 of 2011 and M.P.No.1 of 2011
Decided On : 17-11-2016
Hindu Succession Act, 1956 - Sections 6 and 8 – Devolution of interest in coparcenary property - General rules of succession in the case of male - Registered Sale Deed – Execution of - Remedy of specific performance - Plaintiff and first defendant entered into a written sale agreement whereby, first defendant agreed to sell suit properties to plaintiff and agreed to execute and register sale deed in favour of plaintiff in respect of suit properties - Plaintiff has been always ready and willing to perform part of his contract by paying balance sale consideration and to have sale deed executed and registered in his name from first defendant - As per terms of sale agreement, first defendant is bound to complete and perform his part of contract - Even though plaintiff had approached first defendant on several occasions to pay balance sale consideration and had repeatedly requested first defendant to receive same and to execute and register a proper sale deed in his favour, first defendant has been delaying the same under one pretext or other with a sole view to cheat and defraud plaintiff - Held, On other hand, as per normal turn of events, plaintiff had, as agreed between parties, taken sale agreement in stamp papers purchased in name of first defendant and which were available in custody of first defendant at the relevant point of time - Therefore, above aspect, being question of fact and not involving question of law and also, considered by courts below in the right perspective would not be helpful to sustain the defence of defendants in any manner - Similarly, plaintiffs counsel relied on the decisions reported in 2003 (4) Mh.Lj 134 : 2004(2) BCR 361 (Asudamal V. Kisanrao), AIR 2004 Supreme Court 4472(1) (P.DSouza V.Shondrilo Naidu), AIR 1998 Madras 336 (K.M.Rajendran V.Arul Prakasm and another), AIR 2002 Himachal Pradesh 106 (Dalip Singh V.Ram Nath and another), AIR 2006 Allahabad 289 (Nardev Singh and Ors V.Mahabir Singh and Anr) and AIR 2000 Himachal Pradesh 53 (Shri Krishan Swarup Bhatnagar V. Shri Chander Mohan Rewal and another) and principles of law, as held, are followed and applied as applicable to facts and circumstances of present case - Hold that defendants have failed to establish that substantial questions of law are involved in this appeal for consideration - Second appeal dismissed.
Challenge in this second appeal is made by the defendants against the judgment and decree dated 05.10.2010 made in A.S.No.5 of 2008 on the file of the Principal District Court, Namakkal, confirming the Judgment and decree dated 13.09.2006 made in O.S.No.491 of 2002 on the file of the Sub Court, Namakkal.
2. The suit has been laid for specific performance.
3. The averments contained in the plaint are briefly stated as follows:
The suit properties belonged to the first defendant. The plaintiff and the first defendant entered into a written sale agreement on 15.06.1986, whereby, the first defendant agreed to sell the suit properties to the plaintiff for a total sum of Rs.1,00,000/- and accordingly, received from the plaintiff, a sum of Rs.85,000/-, as an advance on 15.06.1986 and the parties have entered into the sale agreement on the same date and the first defendant further agreed to receive the balance sale consideration of Rs.15,000/- within a year, from the date of the sale agreement (i.e.) on or before 15.06.1987 and agreed to execute and register the sale deed in favour of the plaintiff in respect of the suit properties.
4. The plaintiff has been always ready and willing to perform part of his contract by paying the balance sale consideration of Rs.15,000/- and to have the sale deed executed and registered in his name from the first defendant. As per the terms of the sale agreement, the first defendant is bound to complete and perform his part of contract. Even though the plaintiff had approached the first defendant on several occasions to pay the balance sale consideration and had repeatedly requested the first defendant to receive the same and to execute and register a proper sale deed in his favour, the first defendant has been delaying the same under one pretext or the other with a sole view to cheat and defraud the plaintiff. Therefore, left to no other alteration, on 11.05.1987 the plaintiff issued a lawyer notice to the first defendant calling upon him to complete the sale transaction as per the terms and conditions of the sale agreement. Therein also, the plaintiff has expressed his readiness and willingness to have the sale deed executed in his name. The first defendant sent a reply notice dated 21.05.1987 containing false allegations and also, denying the execution of the sale agreement itself and directed the plaintiff to send a copy of the sale deed dated 15.06.1986 for his perusal, as if he is unaware of the same and to enable him to give a detailed further reply. The plaintiff sent a suitable rejoinder along with a xerox copy of the sale agreement dated 15.06.1986 to the counsel for the first defendant. Even on receipt of the same, the first defendant did not choose to send any further reply. Again, on 03.07.1987, the plaintiff sent a reminder-cum-pre suit notice to the first defendant. After receiving the same, the first defendant approached the plaintiff and promised to complete his part of the contract, but he failed to do so. Again, the plaintiff approached the first defendant and then also, the first defendant promised to perform part of his contract, but the first defendant failed to act as per his promise. The plaintiff purchased the court fee stamp papers for Rs.7,500/- on 08.08.1988 from S.T.O., Tiruchengodu and on coming to know of the same, the first defendant again approached the plaintiff with the panchayatdars and agreed to execute and register the sale deed within five months and inasmuch as the first defendant failed to act as per the above said decision of the Panchayatdars, the plaintiff, on 28.04.1989, sent a last reminder-cum- pre suit notice to the first defendant and the first defendant, on receipt of the same, neither replied to the same nor came forward to execute and register the sale deed as per the sale agreement. The first defendant has not been willing to perform his part of the contract in spite of several demands made by the plaintiff. As the first defendant attempted to e
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