THIRUMENI Vs. AMIRTHALINGAM

JUDGEMENT

(1.) The defendant is the appellant. The suit was filed by the plaintiff for specific performance. The plaintiffs case is as follows:

(2.) The learned District Munsif, Mayuram dismissed the suit with costs. Aggrieved by the same, the plaintiff preferred an appeal to the Sub Court, Mayuram and the learned Sub Judge, by his judgment dated 28.6.1983 allowed the appeal. Hence the second appeal by the defendant.

(3.) The Point: - The defendant has taken a definite stand in the written statement that it is her ancestral property obtained by her husband in partition and that her husband died leaving behind three sons and two daughters. In the plaint it is not stated that the property belongs solely to the defendant. It is simply stated that the property was enjoyed by the defendant. When the plaintiff was examined as P.W.1 she has not chosen to say that the property belonged absolutely to the defendant. Therefore when the defendant has taken the stand that the property is an ancestral property and that it has been obtained by her husband in a partition and that her husband has died leaving behind three sons and two daughters and the defendant is a heir, the suit by the plaintiff for specific performance against the defendant alone cannot be maintained. It is not the plaintiffs case that the defendant executed the agreement as the Manage of the Hindu family. She being a female cannot be the manager of any co -parcenary nor of any joint family. Therefore it cannot be stated that the agreement was executed by her as the Manager. It is also not by her as a guardian of any minor children. It is executed by net as though the property belonged to her absolutely and in her individual capacity. Therefore, if at all, the defendant is entitled to only a share in the property, and the share to which the defendant is entitled to is not a major share. For, according to the defendant there are three sons and two daughters. Therefore, at best she is entitled to only 1/6th share in the property. The plaintiff has not chosen to implead the children of the defendant. Nor the plaintiff has chosen to amend the plaint suitably in the context of the averment made in the written statement. Therefore, as the defendant has only a fraction of the share in the property the specific performance of the agreement cannot be compelled. The other heirs have not been made parties either to the suit or to the agreement. Therefore, on this ground the suit must fail. The numerous inconsistencies in the evidence of plaintiff and his witnesses have not at all been properly appreciated by the lower Appellate Court. They are simply brushed aside when there are no reasons for doing so. Admittedly, the defendant is an illiterate lady. The plaintiff and his witnesses categorically stated that the entire transaction took place in the house belonging to Duraikannan who mediated and brought about the agreement. The said Duraikannan has not been examined at all. There is no reason for the non examination of the said Duraikannan. The plaintiff is a resident of Myladuthurai town. The defendant is residing in a village situate within Myladuthurai Taluk. The suit agreement is engrossed on two stamp papers one for the value of Rs. 2 and the other for the value of Rs. 50 paise. The stamps have been purchased from a stamp vendor by name Ranganathan of Sirkali. The property is situate in Myladuthurai. The plaintiff is a resident of Myladuthurai taluk. The defendant is a resident of Myladuthurai taluk. When so, there is absolutely no reason as to why stamp papers should be purchased from the stamp vendor at Sirkali. On the other hand from the evidence of one of the witnesses examined on the side of the plaintiff it is clear that there is a stamp vendor at Pattamangalam St., Myladuthurai. According to the witnesses the transaction, was entered into at the house of Duraikannan a resident of Pattamangalam St., Myladuthurai. Therefore when it is so, it is rather strange that parties should go all the way to another place to buy the stamp papers.