The court denied specific performance due to insufficient evidence of an agreement and ruled that the properties were partible, allowing for a partition among the parties.

JUDGMENT

P.V.BALAKRISHNAN, J

RFA No.443/2018 is filed by the defeated defendants 1 to 5, 7 & 8 challenging the judgment and decree passed in O.S.No.17/2016 by the Sub Court Kasargod. RFA No.445/2018 is filed the non suited plaintiffs 1 to 5, 7 & 8, aggrieved by the judgment and decree passed in O.S.No.20/2015 by the Sub Court, Kasargod.

2. O.S. No. 20/2015 is a suit for partition and O.S.No.17/2016 is a suit for specific performance. Both suits were jointly tried by the trial court, by taking O.S.No.17/2016 as the leading case. The plaintiffs in O.S.No.20/2015 are defendants 1 to 8 in O.S.No.17/2016. Defendants 2 to 5 in O.S.No.20/2015 are the siblings of defendant No.1 and they are not parties in O.S.No.17/2016. The 6th defendant in O.S.No.20/2015 is the husband of the 2nd defendant, and he is is the 9th defendant in O.S.No.17/2016. It is the 2nd defendant in O.S.No.20/2015 who is the plaintiff in O.S.No.17/2016.

3. These suits pertain to a dispute between two branches of a family, one among them being the legal heirs of Sumathi Naik and Sadashiva Naik and other being the legal heirs of Muthakke Alva and Santha Alva.

4. Plaintiff in O.S.No.17/2016 belongs to the branch of Sumathi Naik and Sadashiva Naik. It is her case that the plaint A schedule property was fully occupied by the tenants with whom there were unending litigations. Hence, it was agreed by the other co-owners to sell the plaint A schedule property to her for Rs.60,00,000/-. The share of the defendants' branch was fixed at Rs.35 Lakhs excluding her share of Rs.5 Lakhs. Pursuant to the agreement, the 9th defendant who is her husband took various steps to vacate the tenanted premises. Defendant No.9 succeeded in it and he took vacant possession of the structures from the tenants of the A schedule property. Plaintiff handed over the entire agreed consideration for the sale of 'A' schedule property to the defendant No.9, who in turn paid it to the other co-owners. Thereupon, all the other co-owners executed powers of attorney authorising defendant No.9 with powers, right and authority to deal with the property. Accordingly, defendant No.9, constructed a commercial complex by name “Ullipady Chambers” by utilising the plaintiff's funds and the same is described in plaint 'B' schedule. Pending the execution and registration of a formal sale deed of A schedule property in favour of plaintiff, defendant No. 9, as constituted attorneys of co-owners, executed an agreement dated 24/4/2001 inter alia; confirming the receipt of the entire agreed sale consideration from the defendants, having put the plaintiff in exclusive possession of the A schedule property by all co-owners and having agreed to execute and register sale deed for the A schedule property in her favour. Thereafter, four shop rooms in the new building, which were sold to the respective tenants, were also re-purchased by the plaintiff. Subsequently, when disputes arose between the parties, defendants 1 to 8 filed O.S No.20/2015 seeking partition of A & B schedule properties. Plaintiff has fulfilled her part of the contract and she is always ready and willing to perform the same and the defendants have failed and neglected to perform their part of the contract and execute the sale deed.

Hence, she filed the suit for specific performance.

5. The defendants 1 to 8 in O.S.17/2016 (plaintiffs in O.S. No.20/2015), who are the legal heirs of Muthakke Alva and Shanta Alva, denied the existence of an agreement in 1996 in between the co-owners to sell the property, the receipt of share of sale consideration to the tune of Rs.35,00,000/- and of having given consent to sell, convey and transfer A Schedule property to the plaintiff for Rs.60 Lakhs. It was contended that the plaint A schedule property and the building situated therein were administered by their father for more than 40 years and when disputes arose with the tenants, had entrusted the plaintiff's husband (9th defendant) to administer the property and proceed with the l