G NAGESHWARARAO Vs. VEERAPANDI S AMMUGHAM

JUDGEMENT

(1.) THIS is a suit for specific performance to direct the defendants to execute the sale deed with regard to the suit property in favour of the plaintiff, failing which, to direct an officer of this Court to execute the sale deed and for costs.

(2.) THE suit property was the self-acquired property of one late Ramanujalu Naidu, the father of defendants 3 to 7. THE said Ramanujalu Naidu died intestate in the year 1984, leaving his wife Rukmani Animal, who died in the year 1996, and also defendants 3 to 7. THE plaintiff is residing in the suit property as a tenant for the past 30 years. Defendants 1 and 2 entered into a sale agreement on 29.3.1994 in respect of half of the suit property with Renuka and Thilothumai in their own right and Thilothummai as the power agent of late Rukmani Ammal. Defendants 1 and 2 assigned the above sale agreement in favour of the plaintiff on 1.11.1994 and received an advance of Rs. 1,00,000/-. Defendants 1 and 2 have also taken possession of the upstairs and the out-house of the suit property, which represent half share of defendants 3 to 5. Such possession of the above said half share was given to defendants 1 and 2 by defendants 3 to 5 as a condition precedent for sale of the other half share. THE sale consideration agreed to for the suit property was Rs. 52,50,000/-. THE plaintiff informed defendants 1 and 2 about his readiness and willingness to perform his part of the contract. But defendants 1 and 2 did not execute the sale deed with regard to the suit property. Defendants 1 and 2 demanded Rs. 50,00,000/-for half of the schedule mentioned property. Defendants 3 to 7 were impleaded as parties to the suit for the purpose of specific performance of the above said agreement. It is under the said circumstances, the plaintiff has come forward with this suit for the relief of specific performance.

(3.) EX. A.3 dated 20.1.1994 is the xerox copy of the sale agreement between one Durai Mohan and the 6th defendant for herself and on behalf of Rukmani Ammal as power agent with regard to 2/6th share in the suit property for a sum of Rs. 8,00,000/-, out of which Rs. 5,00,000/- was paid as advance. EX. A.4 dated 29.3.1994 is the xerox copy of the sale agreement between defendants 1 and 2 on the one hand and defendants 6 and 7 on the other hand with regard to 2/5th share in the suit property purchased by Ramanujalu Naidu on 6.4.1946. The agreement was for Rs. 8,00,000/- and a sum of Rs. 2,00,000/- was paid as advance as seen from EX. A.4. EX. A.5 dated 29.6.1994 is the deed of assignment executed by the abovesaid Durai Mohan in favour of defendants 1 and 2 with regard to 2/6th share covered under EX. A.3. A perusal of EXs. A.3 to A.5 would disclose that defendants 1 and 2 had entered into an agreement to purchase half of the suit property. It is also evident from the perusal of the above said documents that the agreement for sale was entered into with regard to the undivided shares of co-sharers and no specific property was agreed to be sold by the co-sharers referred to above either to Durai Mohan or to defendants 1 and 2. In the light of the above said documentary evidence and in the light of the evidence of D.W.2, it is evident that there was no partition between the co-sharers in respect of the suit property at any time before. P.W.I himself would admit during cross-examination that he does not know whether there was any partition between defendants 3 to 7 with regard to the suit property, even though he admits that he is the tenant of the suit property for the last 30 years. In view of the said position, it is clear that there could not have been any partition between defendants 3 to 7 or their mother Rukmani Ammal at any time after the death the Ramanujalu Naidu. Therefore, the agreement for sale executed or assigned in favour of defendants 1 and 2 should be only with regard to the undivided share mentioned in those documents out of the suit property and not for the entire suit property.