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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R.SUBBIAH, A.D. JAGADISH CHANDIRA, JJ.
S. Palanivel - Appellants
Vs.
P.Natesan – Respondent
A.S.Nos.484 & 485 of 2008 and M.P.No.2 of 2012, C.M.P.No.8749 of 2017
Decided on : 26-10-2017
Indian Evidence Act – Section 73 – Civil Procedure Code, 1908 – Order 22 Rule 3A – Specific Performance – Appellants herein are the plaintiffs in O.S. – Originally, the appellants herein/plaintiffs had filed the suit in O.S. before the Sub-Court at Salem, as against the 1st defendant P.Natesan, for specific performance of the sale agreement – Subsequently, the said suit was transferred to the file of Additional District Court (FTC-I), Salem and renumbered as O.S. – Later in the said suit, the daughters and son of the 1st defendant P.Natesan got themselves impleaded as defendants 2 to 5 and opposed the prayer of the plaintiffs for specific performance. – Held, Entire properties acquired by the 1st defendant and his father Ponna Gounder had been thrown into the common hotch pot and treated as joint family property. At no point of time the acquired properties were enjoyed as their separate properties. – Therefore, the defendants 2 & 3 are entitled to claim partition in the suit schedule property. – Moreover, the plaintiffs who are stranger to the family are not entitled to question the relief of partition sought for by the defendants 2 & 3. – Further, the compromise decree was passed on 21.01.1991, much earlier to the date of alleged sale agreement dated 05.07.1998. – It is the main contention of the learned senior counsel for the appellants/plaintiffs that the partition suit was filed only to frustrate the suit for specific performance filed by the plaintiff. – Since this Court has already come to the conclusion that the transaction between the plaintiffs and the 1st defendant is only a loan transaction and not the sale transaction, the plaintiffs are not entitled to question the relief of partition sought for by the defendants 2 & 3, as it has to be treated as joint family property. – Therefore, the decree passed in the partition suit filed by the daughters cannot be challenged by the plaintiffs/appellants herein. – Appeals Dismissed
R.SUBBIAH, J.
In the present appeals challenge is made to the common judgment and decree dated 20.03.2008 made in O.S.No.228 of 2004 & O.S.No.131 of 2006 respectively, passed by the learned First Additional District (Fast Track Court No.1), Salem.
2. The appellants herein are the plaintiffs in O.S.No.228 of 2004. Originally, the appellants herein/plaintiffs had filed the suit in O.S.No.193 of 2002 before the Sub-Court at Salem, as against the 1st defendant P.Natesan, for specific performance of the sale agreement dated 05.07.1998. Subsequently, the said suit was transferred to the file of Additional District Court (FTC-I), Salem and renumbered as O.S.No.228 of 2004 (A.S.No.484/2008). Later in the said suit, the daughters and son of the 1st defendant P.Natesan got themselves impleaded as defendants 2 to 5 and opposed the prayer of the plaintiffs for specific performance.
3. That apart, unmarried daughters of the 1st defendant P.Natesan, who are defendants 2 & 3 in O.S.No.228/2004, viz., Thamarai Nayaghi & Pallavi Natesan had also filed a separate suit in O.S.No.160 of 2004 before the Sub-Court at Namakkal, for partition of the suit schedule properties into 10 equal shares, as against their father Natesan and others and also impleading the plaintiffs in O.S.No.228 of 2004, as defendants 5 & 6. Later the said suit in O.S.No.160 of 2004 was transferred to the Additional District Court at Salem and renumbered as O.S.No.131 of 2006 and tried along with O.S.No.228 of 2004.
4. The Trial Court, by judgment dated 20.03.2008, dismissed the suit filed by the appellants herein/plaintiffs in O.S.No.228 of 2004 filed for specific performance, holding that the Sale Agreement dated 05.07.1998 (Ex.A.1) is not a valid one, and decreed the suit in O.S.No.131 of 2006 filed by the two unmarried daughters of the said Natesan for partition of the suit schedule properties and passed a preliminary decree.
5. Since the issue involved in both the appeals are interconnected with each other, both these appeals are disposed of by way of this common judgment.
6. For easy reference, the parties will be referred to as per their rankings in O.S.No.228 of 2004, which was filed by the appellants herein for specific performance, as plaintiffs and the defendants. The respondents 7 & 8 viz., Chandrasekan and Muthayee in A.S.No.485 of 2008 will be referred to as D7 & D8.
7. The case of the plaintiffs in O.S.No.228 of 2004 filed for specific performance are as follows :
7-1. The 1st defendant P.Natesan is the absolute owner of the suit schedule property. The plaintiffs 1 & 2 entered into an agreement of sale on 05.07.1998, whereunder the 1st defendant agreed to sell the suit schedule property in favour of the plaintiffs for a sum of Rs.22 lakhs and on the same day, the 1st defendant received a sum of Rs.20 lakhs from the plaintiffs towards a portion of the sale consideration and as advance amount. The balance sale consideration was agreed to be paid on or before 05.04.2002 and the 1st defendant has to execute the sale deed in favour of the plaintiff by receiving the balance sale consideration. Pursuant to the said sale agreement, the 1st defendant had also handed over the parental documents like Sale Deed dated 07.07.1983, copy of the final decree dated 21.1.1991 passed in a partition suit in O.S.No.963 of 1991 filed by the 1st defendant Natesan as against his father and grand-father, copy of compromise petition, order passed by Tahsildar dated 28.05.1991 and a kist receipt, to the plaintiffs as part performance.
7-2. From the date of sale agreement, the plaintiffs are ready and willing to perform their part of the agreement. In fact, the plaintiffs requested the 1st defendant, at many times, to receive the balance sale consideration of Rs.2 lakhs and to execute the sale deed in favour of them as per the terms and conditions of the sale agreement and to deliver the possession of the suit property to the plaintiffs. In spite of repeated personal requests, the 1st defe
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