PAPPAMMAL (DIED) & OTHERS Vs. SAROJINI & ANOTHER

JUDGEMENT

(1.) The 1st respondent herein/plaintiff has filed the suit in OS.No.2327/1996 to pass a judgement and decree against the appellants 1 to 3 herein/the defendants 1 to 3, (a) declaring that the defendants 1 to 3 have no right in the suit property, (b) for delivery of possession of the suit property to the plaintiff, (c) directing the defendants 1 to 3 to pay past damages of Rs.9600/-, (d) directing the defendants 1 to 3 to pay future damages at the rate of Rs.400/- p.m. from the date of the suit till the date of delivery of possession and (e) for costs.

(2.) The case of the Plaintiff as set out in the plaint is as follows:- a. The suit property and the other properties belonged to the 4th defendant, namely, N.G.R.Industrial Workers Cooperative Housing Society Limited and only the bona fide members of the Society are eligible to be allotted a property. The father of the plaintiff Chinnaswamy Naidu was the member of the 4th defendant Society and he was allotted the property at Door No.19, in site No.55 in S.Nos.450, 451 and 452/1A Singanallur and he was in possession and enjoyment of the same as an allottee. The father of the plaintiff died on 10.8.1981 leaving behind his widow, Rajamanickam and the plaintiff as his heirs. The mother of the plaintiff has given a consent letter to the 4th defendant Society for transferring the property to the plaintiff and the 4th defendant Society recognised the plaintiff as the lawful owner of the property as per deed of conveyance dated 7.5.1990. The plaintiff has been paying the taxes and other charges to the Coimbatore Corporation. b. The alleged agreement dated 19.11.1978, said to have been entered into between late Chinnaswamy Naidu and one Nachimuthu gounder, who is the husband of the 1st defendant and the father of the defendants 2 and 3 agreeing to sell the suit property to Nachimuthu gounder, is not a true and valid document. Even if the said agreement is true, it will not bind the plaintiff. The alleged agreement of sale is in contravention of the by-laws of the Society, which prohibits any member from assigning, subletting or parting with the possession of the property without prior permission of the Board of Directors of the 4th defendant Society. But, no such permission was obtained by the father of the plaintiff. Therefore, the alleged agreement and the entire transaction are illegal and not enforceable in law and hence, the defendants 1 to 3 are the trespassers and they are liable to pay damages to the plaintiff at the rate of Rs.400/- per month and to pay Rs.9600/- towards past damages and to pay future damages from the date of the suit till the date of delivery of possession at the rate of Rs.400/- p.m. The plaintiff sent a notice dated 14.10.1992 to Nachimuthu Gounder and to the 4th defendant Society. On return of the postal cover, the plaintiff came to know that the said Nachimuthu Gounder died and the 4th defendant Society refused to receive the notice. Thereafter, another notice dated 15.11.1992 was also sent to the defendants 1 to 3. In such circumstances, the suit has been filed.

(3.) In the Written Statement filed by the Defendants 1 to 3, it is averred as follows:- a. The plaintiff filed the suit with false pleadings in order to deceive and defraud the defendants 1 to 3. The plaintiff and her mother suppressed the notice dated 28.4.1990. The father of the plaintiff entered into an agreement with Late Nachimuthu Gounder for the sale of the suit property and the same was attested by the mother of the plaintiff and three others. Late Nachimuthu Gounder was put in vacant possession of the suit property on 19.11.1978 and he paid amounts as per the terms of the agreement and made improvements in the suit property by spending huge amounts. The defendants 1 to 3 are complying with the terms of the agreement. The father of the plaintiff died intestate leaving behind the plaintiff and her mother and they agreed to execute the sale deed, but took time till the 4th defendant Society executes the conveyance deed. In 1990, the defendants 1 to 3 came to know from the 4th defendant Society that the Society was ready to convey the property. Late Nachimuthu Gounder informed the same to the plaintiff and her mother, but they evaded to get the conveyance deed in the name of the late Nachimuthu Gounder. b. Late Nachimuthu Gounder issued a legal notice dated 28.4.1990 to the plaintiff, but there was no reply. The plaintiff and her mother waited from 19.11.1978 till this date and created some documents and receipts after the said notice dated 28.4.1990 and filed the suit and hence, the suit is barred by limitation. The defendants 1 to 3 are enjoying the property from 19.11.1978 to 14.10.1992. The plaintiff and her mother are aware of the agreement executed by Late Chinnasamy Naidu. In order to defeat and defraud the defendants 1 to 3, the plaintiff's mother obtained the conveyance deed from the 4th defendant Society in the name of the plaintiff. Hence, the suit is liable to be dismissed.