The suit and decree were deemed collusive as the 1st defendant stayed away from the proceedings and the additional evidence did not support the plaintiff's claim.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 12.03.2015 made in A.S.No.55 of 2010 on the file of the learned Third Additional District Court, Dharapuram confirming the judgment and decree dated 25.08.2009 made in O.S.No.51 of 2008 on the file of the learned Sub Court, Dharapuram.)

1. The plaintiff is the appellant in the Second Appeal.

2. The case of the plaintiff is that the suit properties are joint family properties and the 1st defendant is the father of the plaintiff. The 1st defendant was attempting to deny the right of the plaintiff in the properties and deal with those properties. Hence, a suit was filed in O.S.No.255 of 1998 seeking for the relief of partition and allotment of the half share in the properties. On the intervention of the family members, there was a compromise and a final Decree was passed based on the compromise on 09.12.1998.

3. The further case of the plaintiff is that the 1st defendant attempted to deal with the properties that were allotted in favour of the plaintiff by entering into an agreement of sale with the 2nd defendant. A suit was filed in O.S.No.308 of 2000 by the 2nd defendant seeking for the relief of specific performance and it was decreed and E.P.No.109 of 2007 was filed to execute the said Decree. According to the plaintiff, the Decree will not bind him, since the 1st defendant did not have the right to deal with the suit properties. Hence, the plaintiff sought for the relief of declaration of title, permanent injunction and for a direction to the 1st defendant not to execute any Sale Deed in favour of the 2nd defendant in E.P.No.109 of 2007.

4. The 2nd defendant filed a written statement and took a stand that the partition suit itself is a collusive suit that was filed only to defeat the rights of the 2nd defendant under the agreement of sale. He further pleaded that the properties were not joint family properties and it was a separate property of the 1st defendant. He further stated that the suit itself has been filed only to stall the proceedings in the Execution Petition filed by the 2nd defendant to execute the decree for specific performance. Accordingly, the 2nd defendant sought for the dismissal of the suit.

5. Both the Courts below on considering the facts and circumstances of the case and after appreciating the oral and documentary evidence, concurrently held against the plaintiff and dismissed the suit. Aggrieved by the same, the Second Appeal was filed by the plaintiff.

6. When the Second Appeal was admitted, the following substantial question of law was framed:

Whether the First Appellate Court is legally right in marking Ex.A4 to Ex.A20 in I.A.No.773 of 2013 ignoring the mandatory compliance of Order XLI Rules 27 and 28 of CPC?

7. Heard the learned counsel for the appellant and the learned counsel appearing on behalf of the respondents.

8. This Court also carefully perused the materials available on record and the findings of both the Courts below.

9. In the present case, the suit properties stood in the name of the 1st defendant. After ascertaining the title of the 1st defendant, the 2nd defendant entered into an Agreement of Sale with the 1st defendant on 25.05.1998 and out of the total sale consideration of Rs.3,00,000/- (Rupees Three Lakhs only), he paid an advance amount of Rs.2,75,000/- (Rupees Two Lakh Seventy Five Thousand only). The original parent document was also handed over to the 2nd defendant as security. Since, the 1st defendant did not come forward to execute the Sale Deed, the suit for specific performance was filed on 21.11.2000 in O.S.No.308 of 2000. After contest, it was decreed on 16.06.2003. Surprisingly, the 1st defendant did not even make a whisper about the so-called partition between him and the plaintiff. Infact, the 1st defendant, after the decree for specific performance, initiated insolvency proceedings and it was dismissed for default on 31.10.2007. Thereafter, the 2nd defendant filed the