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2016 Supreme(Mad) 3892
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M. Velumani, J.
Shanmugavel Nadar (Died) and Another – Appellants
Versus
Kalayana Devadasan and Others – Respondents
S.A. No. 1525 of 2002 and C.M.P. No. 13608 of 2002
Decided On : 08-11-2016
For the Appellant : Mr. S. Meenakshisundaram.
For the Respondents: Mr. A. Arumugam and Mr. P. Mani.
Headnote:
Limitation Act - Article 54 – Civil Suit - Suit for specific performance Agreement of sale suit schedule property – Possession - Trespassed into land - First defendant agreed to sell suit schedule property to plaintiff for a total sale consideration of Rs. 2,500/- and received a sum of Rs. 1,000/- on 10.03.1989 and executed an agreement of sale and first defendant handed over possession of property to plaintiff on same day itself - Plaintiff has to pay the balance sale consideration within one month and get sale deed executed in his favour - Plaintiff paid a sum of Rs. 500/- on 29.03.1989 and another sum of Rs. 500/- and accepting said sums, first defendant made two endorsements in agreement of sale - Plaintiff paid a further sum of Rs. 200/- on 01.09.1989 to first defendant - First defendant did not make any endorsement after receipt of said amount - Plaintiff was always ready and willing to pay balance sum of Rs.300/- and get sale deed executed in his favour - Whether both Courts below failed to consider legal point that suit is barred by limitation - Whether both Courts below erred in holding that alleged endorsement in Exs.A7, A8 and A9, appellant had refused to receive notice - Held, There is nothing on record to show that this plea was raised before Courts below - Therefore, contention of learned counsel for appellant/second defendant cannot be accepted at this stage - Contention of learned counsel for the second defendant/appellant that agreement of sale is unenforceable as it is an unilateral agreement, is untenable - It is well settled even an oral agreement can also be enforced - Judgments relied on by learned counsel for plaintiff are squarely applicable to facts of case - In view of said judgments, judgments relied on by learned counsel for second defendant do not advance case of appellant - Defendants have not produced any evidence to substantiate these claims - Defendants have not taken any steps to take possession from the plaintiff, even though according to them, plaintiff trespassed into land and unauthorisedly in occupation - First defendant is not absolute owner and agreement of sale is invalid and there was oral partition with regard to suit property and property was not handed over to plaintiff and it was leased out to one Aathi Narayanan - After expiry of lease, plaintiff trespassed into suit property - Second appeal is dismissed.
V.M. Velumani, J.
1. This Second Appeal has been filed against the judgment and decree dated 12.07.2002 made in A.S. No. 12 of 1999 on the file of the Sub-Court, Ambasamudram, confirming the Judgment and decree dated 21.12.1998, made in O.S. No. 535 of 1992 on the file of the District Munsif Court, Ambasamudram.
2. The first defendant, who lost in the Courts below, is the appellant. The first respondent is the plaintiff. He filed the suit in O.S. No. 535 of 1992, for specific performance. The respondents 2 and 3 are the daughters and wife of the first defendant. Pending appeal, the appellant/first defendant and the third respondent died. By order dated 16.03.2016, the second respondent, daughter of the first appellant, was transposed as second appellant.
3. For convenience, the parties are referred to as per their rank in the suit in O.S. No. 535 of 1992.
4. Facts of the case:
(i) The first defendant agreed to sell the suit schedule property to the plaintiff for a total sale consideration of Rs. 2,500/- and received a sum of Rs. 1,000/- on 10.03.1989 and executed an agreement of sale and the first defendant handed over possession of the property to the plaintiff on the same day itself. The plaintiff has to pay the balance sale consideration within one month and get the sale deed executed in his favour. The plaintiff paid a sum of Rs. 500/- on 29.03.1989 and another sum of Rs. 500/- on 01.06.1989 and accepting the said sums, the first defendant made two endorsements in the agreement of sale, dated 10.03.1989. The plaintiff paid a further sum of Rs. 200/- on 01.09.1989 to the first defendant. The first defendant did not make any endorsement after receipt of the said amount. The plaintiff was always ready and willing to pay the balance sum of Rs.300/- and get the sale deed executed in his favour. The first defendant was evading execution of sale deed. The plaintiff sent two notices, dated 28.02.1992 and 23.04.1992 to the first defendant. Intimation of said notices were given to the first defendant, but he did not receive the said notices. The said notices were returned with an endorsement as "not claimed.'' Under the circumstances, the plaintiff filed the suit for specific performance of the agreement of sale, dated 10.03.1989.
(ii) The first defendant filed written statement and denied all the averments made by the plaintiff and stated that the suit property is the ancestral property. The plaintiff agreed to purchase the property at Rs. 2,500/- per cent, after clearing the trees and bushes and obtained his signature in blank Rs. 2.50 stamp paper. Contrary to the said offer, after obtaining signature, the plaintiff has created a document as though the first defendant agreed to sell the entire 24 cents for a total sale consideration of Rs. 2,500/-. The first defendant did not execute any agreement of sale and also made endorsements in the agreement of sale. The first defendant came to know about the agreement of sale only when the plaintiff was informing to the Villagers that he purchased the property for Rs. 2,500/- from the first defendant. The property in question is ancestral property. The daughter and wife of the first defendant have share in the property. His daughter got married on 18.11.1990 and therefore, his daughter as per Act 1 of 1990 has a share in the suit property, which is ancestral property. The first defendant, his daughter and his wife partitioned the suit property by oral partition and the same has been reduced into writing and endorsed by all the parties on 01.01.1982 and specific portions were allotted to them. The suit is bad for non-joinder of necessary parties.
(iii) The suit property was leased out to one Aathi Narayanan for three years and the said lease expired on 25.12.1992. After expiry of lease, the plaintiff unauthorisedly occupied the property by trespassing into the same. The first defendant further stated that he did not receive Rs. 200/- on 01.09.1989 as alleged by the plaintiff. No intima
