A KALIAPERUMAL Vs. ARJUNAN

JUDGEMENT

(1.) THE above Second Appeal arises against the judgment and decree made in A.S.No.3 of 1991 on the file of Sub-Court, Cuddalore, reversing the Judgment and Decree made in O.S.No.1345 of 1985 on the file of District Munsif Court, Panruti.

(2.) THE Defendant in the Suit is the First Appellant in the above Second Appeal. THE Second Appellant is the subsequent purchaser of the suit property. Respondent 3 to 5 are the Legal Representatives of the Deceased, First Respondent, who was the Plaintiff in the Suit.

(3.) THE brief case of the Defendant is as follows:(i) According to the Defendant, Jaibunnisa along with her sons - Mohammed Ismail and Mohammed Abubakkar and as the guardian of other minor sons, sold the property on 29.10.1979 in favour of the Defendant for a sum of Rs.10,000/-. As such, it is not correct to say that Jaibunnisa alone sold the property. On 29.10.1979, as mentioned in the Plaint, he had executed an agreement to reconvey the property to Jaibunnisa and a sum of Rs.100/- was paid as advance. According to the Defendant the assignment of the right to repurchase dated 17.12.1984 is not true, valid and also not bona fide. THE Plaintiff is not an assignee in good faith and the assignment is not a bona fide one. THE Defendant sent a reply dated 11.12.1984 to the notice given by the assignor. After the reply, the Plaintiff got an assignment which is not at all valid.(ii) According to the Defendant, the assignor, Jaibunnisa, has no exclusive right to enforce the reconveyance which was executed by Jaibbunnisa along with two minor sons and as the guardian of the minor sons. As such, all the vendors are entitled to the suit property, and the right of reconveyance is a right exercisable by all the parties jointly. THE other sharers are necessary parties to the Suit and the Suit is bad for non-joinder of necessary parties. THE Defendant also made some improvements in the suit property after his purchase and obtained electricity connection.(iii) According to the Defendant, the assignor demanded a sum of Rs.2,000/- for the release of the reconveyance and the Defendant paid the sum of Rs.2,000/- to the assignor, who received the same and handed over the original agreement to the Defendant in token thereon. Since the Defendant had accepted the original agreement, he did not insist upon a separate endorsement of release. THE agreement to reconvey is not at all subsisting and it has been released by the receipt of the amount. THErefore, the Defendant prayed for dismissal of the Suit.