RANGASAMI GOUNDER Vs. PERIAMUTHU GOUNDER AND ORS

JUDGEMENT

(1.) The primary suits, which were tried in the Court of the Subordinate Judge of East Coimbatore, are connected, in the sense that an adjudication in one will have an impact on the other. We shall now succinctly state the facts in the second appeal. The second appeal arises Out of Original Suit No. 77 of 1968 on the file of the Court of the Subordinate Judge of Erode, which was decreed in the first instance by the trial Court. On appeal to the learned District Judge of Coimbatore-East, the judgment and decree of the trial Court were set aside. One Rangaswamy Gounder whom we shall characterise as the plaintiff in the specific performance suit, filed the same for specific performance of an agreement of sale marked as Exhibit A-4 in that suit The main allegations of the plaintiff in this suit were that on 29th June, 1967 defendants 1 and 2, who are the father and the eldest son, contracted to sell certain properties described in the agreement itself for a sum and consideration of Rs. 10,000. An advance of Rs. 2,250 was agreed to be paid by the plaintiff as the prospective purchaser and which was to be paid over by the plaintiff to the Elavamalai Co-operative Land Mortgage Bank in discharge of a mortgage debt by then due over the properties agreed to be sold. The further case of the plaintiff is that a sum of Rs. 750 was paid on that date to the defendants in cash for cultivation expenses. The balance of Rs. 7,000 was to be paid on or before 13th July, 1968 and on such payment, the defendants were to execute the deed of conveyance at their cost and put the plaintiff in possession of the properties. The usual default clauses were also provided for. The plaintiff has paid the sum of Rs. 2,250 to the Bank as agreed to and having parted with the sum of Rs. 750 alleges that though he was always ready and willing to perform his part of the obligation, the defendants were evading the same and he had to, therefore, Institute the present action on 9th March, 1968, which obviously is a date much in advance of the date fixed for performance of the contract. The defendants in their common written statement alleged that they never agreed to sell the properties. According to them, there was a possibility of the Bank taking coercive steps for recovery of the amount due to it and in order to discharge the mortgage debt they approached the plaintiff and wanted him to take the suit properties on lease for a period of three years at the rate of Rs. 2,250 per year and that the plaintiff was to pay a year's rent in advance and discharge the debt due to the Bank. On this basis and understanding, it is said that Exhibit A-4 was drawn up and in that sense it was never an agreement for conveyance of immoveable property, but only a transaction of lease. As the defendants were illiterates, they signed the document without reading the same and the plaintiff did not pay the balance of the amount payable under the lease deed and they denied that they received a sum of Rs. 750 as alleged. Their case is that the property was worth about Rs. 30,000 they that they were entitled to a part of the Suit properties only and that would be worth Rs. 20,000. They would therefore, claim that even if the agreement is to be interpreted as an agreement of sale, it is bad for the reason that the consideration stipulated is inadequate. In these circumstances, they resisted the suit for specific performance. The trial Court went into the question and found that the agreement was an agreement of sale and not an agreement of lease end that on the date of execution of Exhibit A-4, the plaintiff paid a sum of Rs. 3,000 and that the defendants did not prove that the consideration was inadequate nor were they compelled, due to their illiteracy and unknowingness to be a party to that agreement. In those circumstances and after noting that the plaintiff did not even obtain possession of the land from the defendants and after observing that Exhibit A-4 was a registered agreement, which was attested by the kith and kin of the defendants, (SIC)ord trial Court decreed the suit. On appeal, the learned District Judge concentrated on one aspect, namely, whether the price was adequate and mainly on the ground of inadequacy of consideration, he reversed the judgment of the trial Court. The learned Judge also, if we may say so, indulged in an irrelevant discussion as to whether another third party to the suit was a necessary party thereto. He also found incidentally that the suit was premature and that there was no real agreement for sale and even if there was one, the plaintiff, took advantage of the great pressures under which the defendants were at that time for securing funds and in that sense he reversed the judgment of the trial Court. Hence, the second appeal by the plaintiff.

(2.) At this stage, it would be convenient to degrees and state the relevant facts in the other suit which has given rise to A.S. No. 163 of 1972, As already stated by us, defendants 1 and 2 in O.S. No. 77 of 1968 were the father and the eldest son. The second son was one Periamuthu Gounder. For reasons better known and during the pendency of the suit for specific performance already set out, the second son, who is the plaintiff in the partition, suit, whom We shall describe as the second son, instituted a suit in forma pauper is seeking for a declaration that the partition which took place on 17th April, 1962 and as exhibited under Exhibit A-1, is s void instrument and would not bind him on the sole ground that he was a minor on the date when he signed the same and participated in it. It is also pertinent to note that this suit was filed after the suit for specific performance was filed to wit on 21st June, 1968. That was at the time when the specific performance suit was about to be decreed ex parte. The second son has come to Court to set aside the partition deed on the only ground that he was a minor and also pleaded that his signature was obtained by fraud and coercion and the partition as a whole effected under Exhibit A-1 was art unequal one. To this suit his father Mariappa Gounder, who was the first defendant in the specific performance suit and Pattappan, who was the second defendant in that suit as also the plaintiff in specific performance suit and others, were impleaded as defendants 1, 2, 3 etc. Defendants 1, 2 and 4 to 14 remained ex parte. The third defendant in the suit, who is the plaintiff in the suit for specific performance, contested it and alleged that on the basis of the said partition, the father and the eldest son entered into an agreement to sell the shares which they obtained under the said partition and that having had knowledge of such a suit, the second son has come upto this Court seeking to set aside the deed of partition itself on some untenable grounds and he would also allege that the suit itself has been instigated by the father and the eldest son. On these necessary pleadings between the contesting parties in the suit filed by the second son, the following issues were framed:

(3.) The learned trial Judge held that though the plaintiff lost his remedy to set aside the deed of partition under the normal law of limitation, since he did not agitate against it within three years from the date when he became a major, yet he was of the view that as the plaintiff has been proved to be a minor on the date of execution of the partition deed Exhibit A-1, the instrument is void and ineffective in so far as the second son is concerned and, therefore, he accepted the plaintiff's case, decreed the same, and held that the second son was not bound by the deed of partition Exhibit A-1. As against this, the third defendant has filed A.S. No. 163 of 1972.