SETHU PARVATHY AMMAL Vs. BAJJI K SRINIVASAN CHETTIAR

JUDGEMENT

(1.) THE plaintiff in O. S. No. 53 of 1965 on the file of the Court of the Subordinate judge of Thanjavur, who succeeded before the trial court, but lost before the first appellate court is the appellant before this court. She instituted the suit for specific performance of a contract to sell certain immovable property under Ex. A-1 dated 10-2-1965. That agreement was executed by the first defendant on behalf of himself and as guardian of his minor children, defendants 2 to 4 agreeing to sell the property to the appellant for a consideration of Rs. 10,000. The agreement itself recites that out of the consideration of Rs. 10,000, Rs. 4000 had already been accounted for, by payment of Rs. 2698-10 to the Nicholson Town Bank Ltd. , thanjavur, on behalf of the first defendant, a sum of Rs. 500 to one Chakrapani iyer on account of the first defendant and the balance of Rs. 801-90 received by the first defendant by then. Ex. A-1 agreement contemplates the mother of the first defendant Sonna Ammal being a party to that agreement, but she has not actually signed the agreement. This agreement provided a period of three months for execution of the sale deed on receipt of the balance consideration of Rs. 6000. Twelve days after this agreement came into existence, that is, on 22nd February, 1965 under the original of Ex. A, 4, the first defendant acting on his behalf as well as guardian of his minor children, defendants, 2 to 4, sold the property for Rupees 11,000 to the fifth defendant in the suit, the fifth defendant being the brother's sambandhi of the first defendant. After the plaintiff-appellant came to know of this sale, she issued a notice to the defendants and afterwards instituted the present suit for specific performance of the agreement, Ex. A-1. The defence of the first defendant was that the agreement was incomplete and that in any event it was not enforceable for want of mutuality, since the first defendant had no right to bind his minor children by entering into the agreement. The fifth defendant in the suit, in addition to putting forward the contention that the agreement was incomplete, also contended that he was a bond fide purchaser for value without notice of the suit agreement. The learned Subordinate Judge, Thanjavur, who tried the suit, came to the conclusion that the fifth defendant was not a bond fide purchaser for value without notice of the suit agreement. As a matter of fact, he recorded a finding that the sale in favour of the fifth defendant was a faked up one, in order to help the first defendant to refute the rights of the appellant, who had already parted with a sum of Rs. 4000. As far as the contention regarding the incompleteness of the agreement is concerned, the learned Subordinate Judge held against the defendants and therefore on 29th September, 1966 he decreed the suit directing the plaintiff to deposit into court the balance of consideration of rs. 6000 and giving one month's time for that purpose. As against this judgment and decree of the learned Subordinate Judge, the 5th defendant alone preferred an appeal. the learned District Judge of West Thanjavur on 16th December, 1968 in A. S. No. 302 of 1966 allowed the appeal,. He posed before him the following two points for determination, namely, (1) whether the suit agreement of sale is not valid in law to enable the plaintiff to specifically enforce it and whether as such no decree for specific performance can be passed on the basis of such an agreement; and (2) whether the fifth defendant is not a bona fide purchaser for value. As far as the second point is concerned, he agreed with the conclusion of the learned Subordinate Judge. he also recorded a finding that the collusion between the first defendant and the fifth defendant was quite patent. As far as the first point is concerned, the learned District Judge held that the agreement was incomplete, since the mother of the first defendant had not executed the same and therefore on the basis of such an incomplete agreement, the appellant herein would not be entitled to a decree for specific performance. However, at the same time, he passed a decree in favour of the appellant for a sum of Rs. 4000 which the appellant had already parted with. It is against this judgment and decree of the learned District Judge of West Thanjavur, the present second appeal has been preferred by the plaintiff in the suit.

(2.) BEFORE I proceed to deal with the controversy raised in the second appeal, it is necessary to refer as to how the mother of the first defendant came into the picture. Under Ex. B-1 dated 19th August 1959, there was a partition between the first defendant and his brothers of the family properties. Under this document, there is a provision for maintenance made in favour of their mother, each one of the sons paying ten kalams of paddy per year and also a sum of Rs. 40 being the value of two sarees. The document also provided that if any one of the sons defaulted in performing this obligation, the mother will have a charge against the property allotted to the share of that son. It is because of this maintenance charge which the mother of the first defendant had over the suit property which was allotted at that partition to the share of the first defendant, the mother came into the picture. As I have pointed out already, the suit agreement Ex. A-1 recites as if the mother of the first defendant was intended to be a party, but actually it was not signed by the mother. It is against this context the question arose whether the agreement, Ex. A-1 executed by the first defendant alone on his behalf and as guardian of the three minor children, namely, defendants 2 to 4 could be said to be an incomplete one so as to prevent the appellant from obtaining a decree for specific performance even against those defendants who had signed the agreement. it is on this point, the courts below have differed.

(3.) BEFORE I deal with this, it is easier to dispose of the point regarding the 5th defendant being a bona find purchaser for value without notice or not. I have already referred to the fact that both the courts below have concurrently come to the conclusion that there was collusion between the first defendant and the fifth defendant with regard to the sale of the property in favour of the fifth defendant by defendants 1 to 4 in the suit. As a matter of fact, taking into account the relationship between the parties and the evidence adduced by the fifth defendant himself, the courts below could not have come to any other conclusion and therefore in view of this patent position, even the learned counsel for the respondents did not seek to challenge this finding of the courts below on this aspect.