IN THE HIGH COURT OF JUDICATURE AT MADRAS
A. SELVAM, P. KALAIYARASAN, JJ.
K.K. Lingan – Appellant
Versus
Hilary Cornell Young & Others - Respondents
Appeal Suit Nos. 921 & 898 of 2010
Decided On : 02-04-2018
Civil Laws – Specific Performance – Perpetual Injunction – Appellant herein, as plaintiff, has instituted O.S. on the file of the trial Court, for the relief’s of specific performance in pursuance of the sale agreement and also for perpetual injunction, wherein, the respondents 1 to 5 are arrayed as defendants. – Held, Plaintiff has been examined as P.W.1. During the course of cross-examination, he has ultimately admitted to the effect that only as a care taker he has been put into possession of the suit A schedule property. – Further, this Court has grouped the entire recitals found in Ex.A2 and nowhere it is stated that only in pursuance Ex.A2, the plaintiff has been put into possession of the suit A schedule property. – Therefore, the aforesaid contention put forth on the side of the appellant/plaintiff is also sans merit. – It has already been pointed out that even after Ex.A8, the plaintiff has not shown his readiness and willingness to perform his part of the contract in respect of the suit C schedule property. – After a lapse of 8 years, the present suit has been instituted with false averments. – Under the said circumstances, as mentioned supra, the plaintiff is not entitled to get the relief’s sought in the plaint. – On the side of the defendants 3 to 5, counter claims have been made in respect of recovery of possession and also for damages. – It has already been discussed and decided that the possession of suit A schedule property has been given to the plaintiff only as a caretaker and not on the basis of Ex.A2. – Further, the defendants 3 to 5 have purchased the suit C Schedule property for valuable consideration even without knowing existence of Ex.A2 and therefore, title to the suit C schedule property has passed on to the defendants 3 to 5. – Since the defendants 3 to 5 are having title to the suit C schedule property and since the plaintiff has been enjoying the same only as a caretaker, the defendants 3 to 5 are entitled to get the counter claims sought by them. – Trial Court, after analysing the entire evidence available on record, has rightly dismissed the suit and also rightly decreed the same in respect of counter claims. – In view of the discussion made earlier, this Court has not found any error nor illegality in the judgment and decree passed by the trial Court and therefore, the present Appeal Suits are liable to be dismissed. –Appeal Suits Dismissed
A. Selvam, J.
1. These Appeals Suits are directed against the judgment and decrees dated 27.8.2010, passed in O.S.No.14 of 2008, by the District Court, Nilgiris, Udagamandalam.
2. The appellant herein, as plaintiff, has instituted O.S.No.14 of 2008, on the file of the trial Court, for the relief’s of specific performance in pursuance of the sale agreement dated 26.5.1994 and also for perpetual injunction, wherein, the respondents 1 to 5 are arrayed as defendants.
3. The epitome of the averments made in the plaint are that the plaint 'A' Schedule property is the absolute property of one Lillian Cornell Brown, who passed away on 05.11.1960, leaving behind her a Will, dated 03.11.1960, wherein, she bequeathed 'A' schedule property in equal shares to Margery Anne Mathews, Jill Regina Mathews and Hilary Cornell Mathews. In pursuance of the said Will dated 03.11.1960, a probate petition has been filed in O.P.No.5 of 1961, wherein, it has been declared that all the three persons mentioned supra are each entitled to get 1/3 share in the suit 'A' Schedule property. On 06.11.1965, Margery Anne Mathews, on 20.11.1965 Jill Regina Mathews and on 11.11.1965 Hilary Cornell Mathews settled their undivided 1/3 share of the suit 'A' Schedule property on their mother viz., Gwendoline Lillian Mathews and she passed away on 16.4.1988, leaving behind her three daughters as her legal heirs. By virtue of the order passed in O.P.No.27 of 1990, Rev.Cecil Sundararaj has been appointed as an Administrator of the estate of Gwendoline Lillian Mathews. On 26.5.1994, the Administrator has entered into a sale agreement with the plaintiff and thereby agreed to sell the suit 'A' schedule property for a sum of Rs.32 lakhs and on the date of its execution, the plaintiff has paid an advance of Rs.2 lakhs. Both the plaintiff and the Administrator have agreed to complete the sale deed within a period of 12 months. In the meanwhile, the vendor has to make out clear title to suit 'A' Schedule property by way of obtaining necessary permission from the Reserve Bank of India and also a certificate from Income Tax authorities. The Administrator has executed a sale deed in favour of the plaintiff for a sum of Rs.9 lakhs in respect of the suit 'B' Schedule property, a part of suit 'A' schedule property. Both the plaintiff and Administrator have agreed to complete sale deeds in respect of the suit 'C' schedule property in parts. On 25.02.2004, the plaintiff sold the suit 'B' schedule property to his sister-in-law and that too, without disturbing the possession of the plaintiff. During June 1999, the Administrator has left India and thereby an application in O.P.No.19 of 2003 has been filed, wherein the second defendant has been appointed as fresh Administrator on 29.09.2003. The plaintiff has always been ready and willing to perform his part of the contract. On 08.05.2003, the counsel for the defendants 1 and 2 sent a communication to the plaintiff about the appointment of fresh Administrator in O.P.No.19 of 2003. Again on 18.07.2005, the counsel informed about the amended Letters of Administration, empowering the second defendant to administer the estate. On 06.12.2005, the counsel of the defendants 1 and 2 has sent a communication stating that due to change in regulation, there is no need for Reserve Bank of India permission and also requested to produce draft sale deed for approval. The plaintiff has approached the counsel and no result has come out. On 12.04.2007, the second defendant has addressed to the plaintiff so as to complete the sale deed on or before 15.05.2007. The plaintiff has approached the second defendant. He failed to perform his part of the contract. On 02.04.2008, the counsel of the second defendant has issued a notice stating that 'C' Schedule property has already been sold to the defendants 3 to 5. The sale deeds executed in favour of the defendants 3 to 5 are not binding upon the plaintiff. The defendants 1 and 2 have purposely delayed perform
Sourdu Mari David and Others vs. Louis Chinnaya Arogiaswamy and Others
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