PACHAIAMMAL Vs. MURUGAYEE AND ORS

JUDGEMENT

(1.) The first Defendant in the Original Suit is the sole Appellant in the Second Appeal. The suit was filed before the trial Court originally by one Palaniappan for the relief of specific performance based on an alleged agreement for sale dated 29.03.1984, marked as Ex.A.2. Since the said Palaniappan died subsequently, the Respondents 1 to 6 herein got imp leaded as Plaintiffs 2 to 7. The suit was filed against the Appellant herein and the 7th Respondent herein arraying them as Defendants 1 and 2 respectively.

(2.) In fact, the suit was originally filed against the Appellant alone and the 7th Respondent was subsequently imp leaded as second Defendant by virtue of an order dated 13.01.1995, made in I.A. No. 88/95 in the Original Suit No. 214 of 1989 on the premise that the 7th Respondent herein got a sale deed from the Appellant herein during the pendency of the suit. Though the 7th Respondent/second Defendant was served with summons after impalement, he did not contest the suit and he remained exporter. It was the Appellant/first Defendant, who brought the fact of her having executed a sale deed under Ex.B.9 in favour of the 7th Respondent herein by incorporating such a plea in the written statement and contended that the suit was bad for non-joiner of necessary parties. Pursuant to the same, the Plaintiffs imp leaded the 7th Respondent herein as second Defendant with the necessary additional pleadings by way of amendment to the effect that if at all any sale deed had been executed by the Appellant herein/first Defendant in favour of the 7th Respondent herein/2nd Defendant, the same would have been brought into existence with the fraudulent intention of defeating the claim of the Plaintiffs and the same would not bind the Plaintiffs.

(3.) After the impalement of the 7th Respondent herein/Defendant, he did not appear to deny the contention of the Plaintiffs that such a sale was not valid and was created with the fraudulent intention to defeat the claim of the Plaintiffs and the same would not affect the right of the Plaintiffs. On the other hand, the first Defendant (Appellant herein) herself chose to file an additional written statement in which she herself stated that the said sale deed was not a real transaction and the same was executed by her in favour of the 7th Respondent herein/second Defendant as a sham and nominal deed. Even after such pleading, the second Defendant remained exporter. Therefore, the admitted case of both the parties regarding the said sale transaction is that the sale transaction under Ex.B.9 was not a real one and was only a sham and nominal and hence, it is non-est in the eye of law. The suit having been filed based on the alleged suit agreement of sale dated 29.03.1984, marked as Ex.A.2, the Appellant herein/first Defendant contested the suit by contending that the said document (Ex.A.2) was not a genuine one and she did not execute such an agreement for sale.