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2018 Supreme(Mad) 2091
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
S. Varadarajan (Died) and Ors. - Appellants
Vs.
K. Srinivasa Rao (Died) and Ors. - Respondents
Appeal Suit No. 751 of 1995 and Cross Objection No. 110 of 1996
Decided On : 05-09-2018
For the Appellants : Mr. P. Thiyagarajan
For the Respondents: Mr. S. Balasubramanian for Mr. A.Arumugam
The main legal point established in the judgment is that the entitlement to specific performance and preemption is determined by the terms of the partition deed and the existence of an agreement of sale between the parties.
Headnote:
specific performance - Property Dispute - Partition deed, Section 52 of Transfer of Property Act, 1882 - The court held that the plaintiffs were entitled to the right of preemption in accordance with the covenant in the partition deed. However, the court held that since there was no agreement of sale between the plaintiffs and the 1st and 2nd defendants, the plaintiffs were not entitled to the relief of specific performance. It was also held that the first and second defendants had sold the property without obtaining consent from the plaintiffs.
Fact of the Case:
The suit involved a property dispute arising from the sale of a property without the consent of the plaintiffs, as per a partition deed. The plaintiffs sought specific performance of a sale agreement and enforcement of the right of preemption.
Finding of the Court:
The court found that the plaintiffs were entitled to the right of preemption as per the partition deed, but not to the relief of specific performance due to the absence of an agreement of sale between the parties.
Issues: The issues included the entitlement of the plaintiffs to specific performance and preemption, obtaining consent for property conveyance, the status of the third defendant as a bona fide purchaser, and the admissibility of evidence.
Ratio Decidendi: The court's decision was based on the interpretation of the partition deed, the absence of an agreement of sale, and the failure to produce admissible evidence to support the claim of preemption.
Final Decision: The appeal was dismissed, and the suit was also dismissed with costs.
The second and third plaintiffs in O.S.No.127 of 1990 on the file of the Principal Subordinate Court, Tirunelveli, have been filed the present appeal suit, challenging the judgment and decree dated 16.12.1991.
2. Simultaneously, the 3rd defendant had filed cross objection in Crs.Obj.No.110 of 1991, also being aggrieved by the judgment and decree.
3. O.S.No.127 of 1990 had been filed by three plaintiffs, K.Subbarao, S.Varadarajan and S.Nagarajan against three defendants, K.Srinivasa Rao, S.Raman and Jothi Manickam. The first plaintiff, K.Subbarao was the father of the second and third plaintiffs, S.Varadarajan and S.Nagarajan. The first defendant, was the brother of the first plaintiff and also the father of the second defendant. The third defendant, Jothi Manickam, was a third party purchaser of the suit property.
4. The suit property was originally owned by Krishnamachariar, father of the first plaintiff and first defendant. He died intestate. After his death, the first plaintiff and the first defendant thought it fit to partition the joint family property and they had executed a registered partition deed on 12.10.1987. The adult sons, namely, the 2nd and 3rd plaintiffs and the 2nd defendant were also involved in the partition deed. In the partition deed, the first schedule property was allotted to the plaintiffs and the second schedule property was allotted to the 1st and 2nd defendants. The third schedule property, which was a pathway, was kept as a common property. The plaint schedule property is the western half of D.No.105. The entire D.No.105 is a small building with tiled roofing with north-south wall dividing the property. There was a right of preemption afforded in the partition deed to the other party, if one of them decided to sell their share.
5. In the plaint, it had been stated that the first defendant had been getting into debts and in October-November, 1989, the first and second defendants expressed their intention to sell their share. They sought the consent of the plaintiffs. It was further stated that on 20.11.1989, it was agreed at Tirunelveli between the plaintiffs and the 1st and 2nd defendants that the plaint schedule property could be conveyed by the first and second defendants for a sum of Rs.52,000/-. The terms were to be reduced in writing within a week. However, the first and second defendants sold the property to the third defendant for a consideration of Rs.52,000/-. The plaintiffs claimed in the plaint that the sale is invalid and void, since the consent of the plaintiffs was not obtained.
6. It was further stated that the third defendant, who is a stranger, had purchased the property knowing fully well about the terms of the partition deed. The first and second defendants did not obtain consent in writing from the plaintiffs. The allegation, that they had granted oral consent, was specifically denied. Immediately, after knowing about the proposal for alienation, the plaintiffs sent a legal notice, dated 10.12.1989. This was not replied by the first and second defendants. On 09.02.1990, the plaintiffs again issued notice to the defendants. This was answered by the third defendant on 12.03.1990. A rejoinder notice, dated 02.05.1990 was issued. The plaintiffs claimed that they have right in law to specifically enforce their right for preemption. They stated that they are also willing to purchase the property for a sum of Rs.52,000/-. It is under these circumstances, the plaintiffs had filed the suit seeking the following relief’s :
“(1) for specific performance of the contract of sale agreement between the parties on 28.11.1989 and also to enforce the right of preemption by directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiffs in respect of the plaint schedule property after receiving the consideration of Rs.52,000/-, within the time to be fixed by this Honourable Court; failing which the Honourable Court be pleased to execute the sale deed in favour of the plai
