MINOR MANGALAM ALIAS BADRAKALI Vs. SUDALAIMUTHU

JUDGEMENT

(1.) THESE two appeals arise out of a common judgment rendered by the Subordinate Judge, Srivilliputtur, in OS. Nos. 29 of 1981 and 23 of 1982. The plaintiffs in O S. No. 23 of 1982 and the first defendant in O.S. No. 29 of 1981 are the appellants in both the appeals. O.S. No. 29 of 1981 was filed at the earliest point of time on 9-4-1979 as O.S. No. 119 of 1979 in the sub court, Ramnad for the relief of specific performance against the first defendant and his father, the second defendant, while the suit O.S. 23 of 1982 was originally filed as O.S. No. 279 of 1979 in the sub court, Ramnad, on 9-61979. Both the suits were transferred to the file of the sub court, Srivilliputtur, and they were tried jointly. O.S. No. 23 of 1982 is a suit filed by the children of the first defendant in O.S. No. 29 of 1981 for the relief of partition and separate possession and maintenance against their father, the first defendant, and the first defendant's father, the second defendant, who was also a party in O.S. No. 29 of 1981. The plaintiff in O.S. No 29 of 1981 is the third defendant, and the subsequent purchaser was added as the fourth defendant during the pendency of the suit. For the sake of convenience, the array of parties in O.S. No. 23 of 1982 can be adopted in this judgment.

(2.) THE case of the plaintiff in O.S. No. 29 of 1981 who was the third defendant in O S. No. 23 of 1982 filed against defendants 1 and 2 in both the suits, is that the suit property which is item 4 of the partition suit O.S. No. 23 of 1982 absolutely and exclusively belongs to the first defendant, and he and his father, the second defendant, agreed to sell the same to him for a valuable consideration of Rs. 59,000 and executed a sale agreement on 7-5-1978. THE same was reduced into writing between the plaintiff and the first defendant who is the owner of the property. THE second defendant acknowledged the same and attested the document. As per the sale agreement, the plaintiff paid a sum of Rs. 3,006 on the date of the agreement and subsequently another sum of Rs. Rs. 1,500 was paid on 14-5-1978 after getting endorsement on the back of the suit agreement. His further case is that he was and is always ready and willing to perform his part of the contract. Further, he has undertaken the responsibility of discharging the othi for Rs 21 000 and pay the balance and obtain the necessary document. But the first defendant was evading the same. THEreupon he issued notices on 20-8-1978 and 16-9-1978 through his lawyer calling upon the first defendant to execute the sale deed. He has sent a reply to the effect that bis father, the second defendant filed a suit against him for maintenance and as such, he is not prepared to execute the sale deed. Since the first defendant has arranged to sell the property to third party, the plaintiff has filed the suit for the relief of specific performance THE second defendant is also added as a party as he has attested the document by acknowledging the sale agreement and he is estopped from denying the said agreemeut or the relief of specific performance and the agreement is binding upon him. Hence the suit.

(3.) THE said suit was resisted by the defendants and in the written statement filed by the first defendant, he would contend that the allegation that the second plaintiff is entitled to half share in the suit properties is not correct. However, he admitted that it is true that he made arrangements to sell the property, that is, item No 4 of the properties, in favour of the third defendant, not in the capacity as guardian of the minors He is prepared to keep the minors in his custody and provide for their marriage expenses He would further state that he has no objection for a decree being passed for partition in favour of the plaintiffs af er working out the share they are entitled to, in law. In the written statement filed by the second defendant, he would contend that he became the absolute owner of the property from 21-3 1947 by means of the registered will executed by his father one Kutty alias Ponniah Pillai. He would further contend that the settlement deed dated 5-5-1952 is a nominal gift deed, and after the death of his wife in 1963, the first defendant forcibly entered into the land and house properties and obtained change of registry in his name He would also state that the first defendant failed to maintain him and hence he is struggling hard for his livelihood. He contended that he suit is a collusive one between the plaintiff and the first defendant and prayed for dismissal of the suit. In the additional written statement filed after the amendment of the plaint in respect of the southern boundary recita's and measurements of item 4, he would state that the disputed item does not form part of item 4 and he is an unnecessary party to the suit. He has stated that he has sold the disputed item to the fourth defendant.