AMIRTHAMMAL Vs. M K MANI IYER

JUDGEMENT

(1.) LEGAL Representatives of the first defendant in O. 6. No. 291 of 1952 on the file of the District Munsiff, Erode who were unsuccessful in both the Courts below are the appellants herein.

(2.) THE respondent herein filed the said suit for specific performance of an agreement of reconveyance. One Mariappan, Rajagopalan and Angappan had sold the property covered by that suit to the first defendant under a sale deed dated 19th February, 1946. On 20th February, 1946, the vendee, the first defendant, had executed an agreement of reconveyance in favour of the vendors, Mariappan and others. THE vendors had executed a mortgage of the right of reconveyance to the vendee. One Kuppayammal, the mother of the first defendant had filed a suit O. S. No. 290 of 1949 against Mariappan the third defendant and obtained a decree. In execution of that decree the second defendant had attached the said right to obtain reconveyance. In pursuance of that attachment that right was brought to sale and purchased by the first defendant on 16th April, 1952. THE sale was confirmed. Since the other two vendors, Rajagopalan and Angappan were not parties to the said suit O. S. No. 290 of 1949, the first defendant, as a result of the Court-auction-purchase could obtain only l/3rd right in the reconveyance, belonging to Mariappan. THE plaintiff had obtained an assignment of the reconveyance from Rajagopalan and Angappan under a deed Exhibit 4 dated 5th October, 1951. Similarly, under ExhibitA-5 dated 11th February, 1952, the plaintiff obtained an assignment of the said right from the third defendant but this was after the attachment was effected in O. S. No. 290 of 1949 and hence it is ineffective. It is in these circumstances the plaintiff filed the suit O. S. No. 291 of 1952 for specific performance of the agreement of reconveyance in respect of the entire suit property or in the alternative in respect of 2/3rd share belonging to Rajagopalan and Angappan and for recovery of possession.

(3.) THE trial Court passed a decree directing the first defendant to execute a deed of reconveyance of the suit property in favour of himself and the plaintiff on the plaintiff depositing a sum of Rs. 1,450 into Court within a period of one month. On appeal, the lower appellate Court took the view that the right to get a reconveyance from Angappan and Rajagopalan stood extinguished and that, the plaintiff is not in any evert entitled to a reconveyance without redeeming the mortgage over the right of reconveyance or paying the proportionate share of his assignors, Angappan and Rajagopalan. In that view the lower appellate Court reversed the decree of the the trial Court and dismissed the suit.