K POOCHAMMAL Vs. P CHINAASAMY THEVAR

JUDGEMENT

(1.) THESE are two second appeals arising out of two suits, filed in the Court of the District Munsif of Thirumangalam. O. S. No. 487 of 1973 was filed by one Chinnaswami Thevar against two persons, Perumal and Poochammal. Perumal had entered into an agreement with Chinnaswami Thevar under Exhibit A-21 on 12th June, 1972, and the suit was for specific performance. Poochammal was the usufructuary mortgagee of the suit property and she claimed to have an agreement, dated 25th November, 1971, marked as Exhibit B-3, for conveying the very same property. She filed O. S. No. 118 of 1974 for specific performance of the agreement in her favour. Both the suits were tried together and a common judgment was rendered. The first defendant in both the suits is Perumal and according to him, he had entered into the respective agreements. He, however, contended in O. S. No. 487 of 1973, the suit filed by Chinnaswami. that the agreement in favour of Poochammal, the usufructuary mortgagee and the plaintiff in the other suit, was anterior in point of time and therefore, the earlier suit, for specific performance should be dismissed. Poochammal who was the second defendant in O. S. No. 487 of 1973 defended that suit by contending that she had an earlier agreement in her favour and that the agreement, dated 12th June, 1972, was merely a collusive one to defeat her rights. In the second suit by Poochammal, the contention of Perumal was that the plaintiff, Poochammal, was not ready and willing to perform her part of the contract and that therefore, another agreement was entered into in favour of Chinnaswami and thatsince the conditions of the agreement with Poochammal had not been complied with, she was not entitled to the relief of specific performance.

(2.) PERUMAL-s son, Chellappa, was impleaded as second defendant in O. S. No. 118 of 1974 filed by Poochammal. He toed the line of his father, Chinnaswami, the plaintiff in the earlier suit, and contended that Poochammal was not entitled to specific performance.

(3.) AT the time of -admission of the second appeals at the instance of the said Poochammal, the following questions of law arising out of the common judgment of the learned District Judge:-