SRINIVASAN Vs. MARUDAMBAL

JUDGEMENT

(1.) THE second appeal has been preferred by one Srinivasan being the first defendant in OS. No. 175 of 1988 on the file of the District Munsif Court, Jayamkondam against the judgment and decree passed by the Sub Judge, Ariyalur in A. S. No. 169 of 1990 in and by which the Sub Judge has set aside the judgment and decree of the District Munsif, Jayamkondam and allowed the appeal granting decree for specific performance and for possession in respect of the suit properties.

(2.) THE plaintiff viz. , one Marudambal filed O. S. No. 175 of 1988 against her own brother Srinivasan and other sisters in the capacity of legal heirs of the deceased father Chinnasamy (defendants 2 to 4) and one Rasu Padayachi (fifth defendant) the alleged purchaser of some portion of the suit properties for the relief of specific performance and for possession based upon an agreement of sale executed by the first defendant Srinivasan and father Chinnasamy on 15. 4. 1985 in favour of the plaintiff. The agreement of sale is a registered one and Rs. 4000/= was paid by the plaintiff as advance to the first defendant and Chinnasamy and the agreed sale consideration is Rs. 7000/= and that the sale deed was agreed to be executed within three years after getting the balance amount of Rs. 3000/=. Inspite of demands and advocate notice, the first defendant and Chinnasamy were not prepared to execute the sale deed and since Chinnasamy died and the fifth defendant purchased some portion of the suit properties, the suit has been filed against the defendants. The suit has been resisted by the first defendant alone and defendants 2 to 5 have remained ex parte. According to the first defendant and his written statement, the suit properties are the properties allotted to the share of the first defendant in a partition between himself and his father Chinnasamy and that the first defendant approached the plaintiff for getting a loan of Rs. 2000/= and on getting Rs. 2000/= as loan from the plaintiff, as usual and for avoiding any Debt Relief Act, the first defendant, as insisted by the plaintiff, executed a registered agreement of sale on 15. 4. 1985 and that towards interest, the suit properties were handed over for enjoyment of the plaintiff. Further, the first defendant is always ready and willing to repay Rs. 2000/= to the plaintiff and that the agreement of sale was not intended to be, as such, for enforcement and it was entered into only as security for prompt repayment. The first defendant has not sold any portion of the suit properties in favour of the fifth defendant and defendants 2 to 4 have no right upon the suit properties and thereby defendants 2 to 5 are unnecessary parties to the suit and thereby the suit is liable to be dismissed.

(3.) ON trial, the District Munsif, after examining the plaintiff as PW1 and two other witnesses viz. , Raman and Radhakrishnan as P. Ws. 2 and 3 and marking Exs. A1 to A5 and also examining the first defendant as DW1 and the fifth defendant as DW2 and marking Ex. B1, has come to the conclusion that the suit agreement of sale marked as Ex. A1 is not at all a document intended to be agreement of sale and it has been executed only for loan transaction between the plaintiff and the first defendant and it is only for the sake of security and thereby discretionary relief of specific performance cannot be granted and consequently, dismissed the suit.