RAJA PAUL DAVID DIED Vs. M THIAGARAJAN DIED

JUDGEMENT

(1.) THE unsuccessful first defendant has preferred this appeal challenging judgment and decree passed by II Additional Subordinate Judge, Salem in O.S.No.567 1977. THE brief facts which are necessary for the disposal of the appeal can be stated follows: Respondents 1 and 2 herein, who are the plaintiffs before the trial Court have the suit to recover the purchase-money paid by the first plaintiff in respect of Riverdale Estate and also to create a charge on the suit property. For convenience sake, array of parties before the trial Court is adopted in this appeal. THE case of the plaintiffs follows: THE estate called Riverdale Estate was owned by two sisters, Miss A.E.H.Short Miss M.H.Short by virtue of the will executed by their father. As per the terms of the one sister died the surviving sister should get the entire estate Miss M.H. Short known Mary became lunatic which necessitated the appointment of a manager to administer the estate. In O.P.No.34 of 1959 G.F.Muiahead and Rev.E.L.Poyser were appointed managers for the lunatic under the Lunacy Act. THEy moved I.A.No.66 of 1960 permission to sell the lunatic's half share through solicitors M/s. King and Patridge Bangalore and obtained permission from Court. THE Solicitors called for tenders by fixing last date as 31.8.1962. THE first defendant offered to purchase for Rs.5,00,000 and I.A.No.402 of 1962 in this regard. In the meantime, the first plaintiff offered to purchase Rs.5,05,000 in I.A.No. 401 of 1962. THE District Court accepted the offer of the first and rejected the offer of the first defendant. Being aggrieved by the same, defendant filed revision in C.R.P.Nos.1634 and 1635 of 1962 before this Court. A.E.H. Short, known as Alice, wanted her half share to be sold through solicitors. Hence, offer made by the first defendant and the first plaintiff was in respect of the entire THE first plaintiff deposited Rs.2,52,500 towards half share of the lunatic sister. He other half share of the non-lunatic sister through her counsel. THE property in its was delivered to the first plaintiff. THE C.R.P. preferred by the first defendant was allowed the High Court setting aside the order passed by the District Court whereupon the Court called for fresh tenders. When possession was asked for from the first plaintiff, refused to deliver possession contending that so far as the half share of the non sister was concerned, the sale price was already sent to the Solicitors which was and deposited in bank and hence there was concluded sale in respect of half share, delivery of possession of half share was effected, that his possession was lawful under of Court and that the District Court has jurisdiction only in respect of the half share lunatic sister. It was also contended that possession of half share without division possible and therefore no recovery is possible. THE first plaintiff applied for return the amount which he paid in respect of the half share of the lunatic. Though application was resisted by the first defendant, the District Court passed an order return of Rs.2,25,000 retaining the balance of Rs.27,500 as security for any possible future. Against the order, an appeal was also filed. In the meantime, the lunatic sister on 17.10.1965. Hence, the non-lunatic sister became entitled to the entire estate as directions of the will. Defendants 1 and 2, purchased the entire estate on 15.4.1966 the surviving sister for Rs.5,00,000. Defendants 1 and 2 agreed and undertook to pay Rs.2,52,500 which the first plaintiff has already paid surviving sister in respect of half share which was received by her and deposited in Defendants 1 and 2 instituted the suit O.S.No.184 of 1966 for recovery of possession against plaintiffs 1 and 2 on the basis of the sale in their favour. THE said suit was THE first appeal (A.S.No.218 of 1973) and the second appeal (S.A.No.379 of 1975) by the plaintiffs 1 and 2 were dismissed. Defendants 1 and 2 filed O.S.No.76 of 1967 recovery of mesne profits on the basis of the findings in the prior suit O.S.No.184 commencing from 7.9.1962 to 21.7.1966. THE said suit was also decreed for Rs.27,500 amount already deposited as security was transferred to the file of the said suit. Defendants 1 and 1 aggrieved by the decision with regard to quantum have preferred an appeal still pending. It is in the above circumstances, the plaintiffs filed the suit for recovery Rs.2,52,500 paid towards the purchase money in respect of the non-lunatic sister with interest, creating charge over the suit property.

(2.) DEFENDANTS 1 and 2 filed a written statement denying the allegations and contending as follows: The plaintiffs are not entitled to rely upon the recitals in the sale and they have no right to sue the defendants on the basis of the recitals. It is further that the defendants undertook to pay the money only on the delivery of possession first plaintiff and not on the defendants taking possession of the estate. Further, there privity of contract between the plaintiff and the defendants in respect of the sale half of the non-lunatic sister. Hence, they cannot rely upon the sale deed. The plaintiffs cannot enforce the recitals in the sale deed since they are strangers to the document. The plaintiffs, who are the defendants in O.S.No.184 of 1966 and O.S.No.76 of 1977, having failed to plead that they were entitled to recover half of the purchase money, are barred from filing the present claim by res judicata and they were estopped from filing a separate suit. DEFENDANTS 1 and 2 are not bound by whatever the third defendant might have said. The cause of action disclosed is vague. The suit is also barred by limitation. There was rate of interest agreed. Hence, they prayed for dismissal of the suit.

(3.) THE plaintiffs gave up the claim against the third defendant by means of an endorsement made on the plaint. Consequently, the suit against the third defendant was dismissed.