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2023 Supreme(Mad) 2893
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ABDUL QUDDHOSE, J.
C.Vivekanandan – Appellant
Versus
M.Dhanakumar – Respondent
S.A.(MD).No.126 of 2017 and C.M.P.(MD).No.2177 of 2017
Decided on : 26-04-2023
Advocate Appeared:
For the Appellant : M/s.J.Anandhavalli
For the Respondent: Mr.G.S.Asok Adithyan
The ownership of property, fraudulent nature of decree, and collusive suits were central to the Court's decision.
Headnote:
Fraud - Specific Performance of Agreement of Sale - Civil Procedure Code - Section 100 - O.S.No.259 of 2004 - Ex.A5, Ex.A1 - Ex.B1, Ex.B2, Ex.B3, Ex.B4, Ex.B5, Ex.B6
Fact of the Case:
The suit O.S.No.259 of 2004 was filed by the plaintiff seeking specific performance of an agreement of sale dated 14.05.1998. The defendant, who was set ex parte, is the adopted son of the original owner, Natesan. The appellant, a third party, claimed to be the absolute owner of the property under a sale deed dated 13.06.1980 executed by Natesan.
Finding of the Court:
The Lower Appellate Court erroneously confirmed the judgment and decree of the Trial Court, dismissing the appeal of the appellant on the ground of latches. The Court found the suit to be collusive and the decree obtained by the plaintiff to be fraudulent. The appellant was found to be the absolute owner of the property, and the plaintiff's claim of the defendant being the adopted son of Natesan was false.
Issues: The Court considered the fraudulent nature of the decree, the ownership of the property, the collusive nature of the suit, and the appellant's right to challenge the decree.
Ratio Decidendi: The Court held that the appellant's ownership of the property was established through unchallenged sale deed and revenue records. The decree for specific performance was obtained through fraud, and the suit was collusive. The Lower Appellate Court's dismissal of the appeal was found to be erroneous.
Final Decision: The judgment and decree confirming the decree of the Trial Court were set aside, and the Second Appeal was allowed.
JUDGMENT :
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree dated 30.11.2016 passed in A.S.No.112 of 2012 on the file of the Principal District Judge, Trichy, confirming the judgment and decree dated 29.07.2004 passed in O.S.No.259 of 2004 on the file of the Principal Sub Judge, Trichy and allow the Second Appeal.
This Second Appeal has been filed challenging the judgment and decree of the Lower Appellate Court, namely, the Principal District Court, Tiruchirappalli dated 30.11.2016 passed in A.S.No.112 of 2012. The Lower Appellate Court in its judgment and decree dated 30.11.2016 passed in A.S.No.112 of 2012 has confirmed the judgment and decree dated 29.07.2004 passed by the Trial Court, namely, Principal Sub court, Tiruchirappalli in O.S.No.259 of 2004. The appellant is a third party to the suit O.S.No.259 of 2004 on the file of the Principal Sub Court, Tiruchirappalli and he was not arrayed originally as a defendant in the said suit. The suit O.S.No.259 of 2004 was filed by the first respondent/plaintiff against the second respondent/defendant seeking for specific performance of an agreement of sale dated 14.05.1998 executed by one Natesan. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit O.S.No.259 of 2004 and the appellant, who is a third party, is described as “Appellant/Third party”.
2. The case of the plaintiff in the suit O.S.No.259 of 2004 is that the defendant is the adopted son of Natesan, who is the owner of the suit schedule property. According to the plaintiff, Natesan agreed to sell the suit schedule property under an agreement of sale dated 14.05.1998 for a sum of Rs.1,18,000/- and on the date of the agreement, a sum of Rs.75,000/- was paid as advance by the plaintiff to the said Natesan. It is further contended by the plaintiff that Natesan died and the defendant, who is the adopted son, on the very same day of the death of Natesan demanded from the plaintiff a further sum of Rs.15,000/- towards funeral expenses. According to the plaintiff, the same was also paid to the defendant and subsequently, further sums were also paid by the plaintiff towards the sale consideration for the purchase of the suit schedule property as agreed by Natesan under the agreement of sale dated 14.05.1998. According to the plaintiff, he has paid the entire sale consideration as per the agreement of sale dated 14.05.1998. He has stated that despite repeated reminders and demands, the defendant, who is the adopted son of Natesan who had entered into an agreement of sale dated 14.05.1998 with the plaintiff, did not come forward to execute the sale deed. In such circumstances, the suit O.S.No.259 of 2004 came to be filed by the plaintiff against the defendant seeking for specific performance of the agreement of sale dated 14.05.1998.
3. The defendant was set ex parte by the Trial Court and an ex parte decree dated 29.07.2004 came to be passed in favour of the plaintiff in O.S. No.259 of 2004 on the file of the Principal Sub Court, Tiruchirappalli and accordingly the relief of specific performance was granted in favour of the plaintiff.
4. The appellant is a third party to the suit O.S.No.259 of 2004 on the file of the Principal Sub Court, Tiruchirappalli and was not arrayed as a party defendant in the said suit. The appellant/third party claimed that he is the absolute owner of the suit schedule property having got the same under a registered sale deed dated 13.06.1980 executed by Natesan in his favour. According to the appellant/third party, the plaintiff and the defendant are own brothers and suppressing the fact of the said relationship, the plaintiff has falsely alleged that the defendant is the adopted son of Natesan, the vendor who is also the vendor to the sale deed dated 13.06.1980 executed in favour of the appellant/third party, in the plaint filed in support of O.S.No.259 of 2004 on the file of the Principal Sub Court,
