T K SANTHA Vs. A G RATHNAM

JUDGEMENT

(1.) Second Appeal No. 80 of 1983 is by the 1st defendant in O. S. No. 83/76 of the Sub Court, Badagara (originally filed as O. S. No. 160/75 on the file of the Munsiff's Court, Payyoli). Second Appeal No. 107 of 1983 is by the plaintiff and defendants 3 and 4 in O. S. No. 34/75. O. S. No. 83/76 is for specific performance of an agreement of sale and O. S. No. 34/75 is a suit for partition. The subject matter in both the suits being the same, they were jointly tried. In order to understand the controversy in the appeals it is necessary to state the facts. I shall refer to the parties as they are arrayed in the partition suit viz., Q. S. No. 34/75. The suit property in the partition suit belonged in common to three persons Dr. Raghavan. Sri Kanaran and Sri. Kunhikannan who purchased the same under the sale deed Ext. A1 dated 17-7-1957 for a consideration of Rs. 300/-. Under Ext. B44 sale deed dated 15-2-1966, one third right of Kunhikannan was assigned to one Mohandas, Advocate, who is the 2nd defendant in the suit. The partition suit is filed by one of the daughters of deceased Kanaran who died on 28-4-1972. The 1st defendant in the suit is Dr. Raghavan who surrendered his one third right to the State under the ceiling provisions of the Land Reforms Act and the State is impleaded in the suit as the 6th defendant in view of the above. The 2nd defendant is the assignee of Kunhikannan under Ext. B44. The 3rd defendant is the widow of Kanaran and the 4th defendant is another daughter of Kanaran who is the sister of the plaintiff. The 1st defendant died during the pendency of the suit and the 6th defendant, his wife was impleaded as his legal representative. The 7th defendant is a person in whose favour the 3rd defendant executed Ext. B1 dated 17-10-1972, agreeing to sell the one third share of herself and her two daughters, plaintiff and the 4th defendant. The plaintiff filed the suit for allotment of one ninth share in the plaint property to her, the other shares being held by the other defendant.

(2.) The main contesting defendant in the suit is the 7th defendant who claimed that the 3rd defendant in the suit had entered into an agreement with her for assigning the one third share belonging to the plaintiff and defendants 3 and 4 to her on receipt of an advance of Rs. 1,000/- from her. She also produced Ext. B1 dated 17-10-1972 in support of that. In the meantime she had also filed a suit O. S. No. 160/75 before the Munsiff's Court, Payyoli for specific performance of the agreement of sale as against defendants 3 and 4 and the plaintiff, which was later renumbered as O. S. No. 83/ 76. She contended that the plaintiff is not entitled to any share in view of the agreement of sale in her favour mentioned above. Defendants 3 and 4 also raised a contention that the plaintiff is entitled to claim her one ninth share.

(3.) As stated earlier, the 7th defendant had filed O. S. No. 83/ 76 for specific performance of the agreement of sale in respect of the one third share that belonged to Kanaran which devolved on the plaintiff and defendants 3 and 4. It was alleged in that suit that there was an agreement on 17-10-1972 by which the 3rd defendant had agreed to convey the one third share belonging to her and her two daughters, plaintiff and 4th defendant, to her. According to her the 3rd defendant was managing the property on behalf of her daughters also and that she agreed to sell one third share in the property belonging to them for a consideration of Rs. 2,250/-. An advance amount of Rs. l.000/- also was paid and the 4th defendant's husband was also an attestor to the document. It was also alleged by the 7th defendant that she was put in possession of the one third share and that the 2nd defendant (Mohandas) was managing the property on her behalf also. She further alleged that in pursuance of the agreement of sale she got possession and made considerable improvements in the property. Inspite of demand the sale deed was not executed and according to her the defendants are bound to assign their one third share to her on receiving the balance price of Rs. 1,250/-. Alternatively she contended that in case it is found that the daughters are not bound by the agreement of sale the plaintiff be granted relief in respect of the share of the 3rd defendant who is bound by the same. O. S. No. 83/76 is filed by the 7th defendant in O. S. No. 34/75. Defendants 1 and 2 in O. S. No. 83/76 are defendants 3 and 4 in O. S. No. 34/75 and the 3rd defendant in O. S. No. 83/76 is the plaintiff in O. S. No. 34/75.