ANDALAMMAL Vs. RAJESWARI VEDACHALAM

JUDGEMENT

(1.) SHANMUKHAM, J.: These appeals are directed against the judgment of Ismail, J. (as he then was) in A.S.Nos.843 and 844 of 1971. The learned Judge set aside the common judgment and decrees of the learned Subordinate Judge of Cuddalore in O.S.Nos.23 of 1967 and 144 of 1968, respectively.

(2.) O.S.No.23 of 1967 is by the present appellant for setting aside the sale deed, dated 17th July, 1975 relating to the suit property marked as Ex.3-2, for recovery of possession of the said property and also for recovery of mesne profits, both past and future. Respondents 1 and 2 in L.P.A.No.77 of 1978 are defendants 1 and 2 in that suit. The second respondent is an alienee of the suit property from the first respondent.

(3.) THE first respondents defence is that the appellants husband is the real owner of the suit property, that he has been enjoying the property, paying taxes, etc., and that as he was in need of money he raised a loan with the Bank and executed the mortgage deed in favour of the bank in respect of the suit property along with his wife as the property stood in her name. As the appellants husband was found guilty of criminal misappropriation to the extent of Rs.25,000 the appellant voluntarily offered to execute Ex.B-2 in order to save her husband from being proceeded against for criminal misappropriation by the first respondent. It is common ground that the appellants husband was employed in a petrol bunk owned by the first respondent. According to the first respondent, a large sum of nearly Rs.25,000 was found due and payable by the appellants husband to her and in partial discharge of the said liability, the appellant joined her husband and executed Ex.B-2 sale deed out of her own accord. THE charge of misrepresentation, coercion and fraud are false and denied by the first respondent. It is further pointed out that nearly a year after Exhibit B-2, sale and the execution of the promissory note marked as Exhibit B-l, dated 20th July, 1965 for the recovery of which the first respondent had instituted the other suit O.S.No.144 of 1968 against the appellant and her husband, did the appellant give notice to him to which he gave suitable reply. Both the suit notice and the suit are at the instigation of the appellants husband. It is immediately relevant to notice that the first respondent was the real owner but failed to put forward a defence on the assumption that the suit property belonged to the appellant contending that nevertheless the appellants case of misappropriation, coercion and fraud are baseless. THE second respondent alienee from the first respondent, while adopting the written statement of the first respondent, resisted the suit on the ground that the appellant is a mere benamidar for her husband as she had no funds of her own to acquire the suit property and as she was never in possession in her own right, that her husband alone was in possession of the same, that Exhibit B-2 sale is true, valid and supported by consideration, the same having been executed voluntarily by the appellant and her husband knowing its full implication and that in any event this respondent purchased the suit property for proper value without any notice of any defect in title.