Rajalakshmi v. Indira Nadanam

Order reserved on Order pronounced on

25.10.2024

11.11.2024 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY C.R.P.(MD)No.1172 of 2024 and C.M.P.(MD).Nos.6643 and 15918 of 2024 Rajalakshmi

... Petitioner Vs.

1.Indira Nadanam

2.Chokkalingam ... Respondents PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., against the Judgment and Decree dated 21.03.2024 made in E.A.No.54 of 2023 in E.A.No.72 of 2022 in E.A.No.129 of 2021 in E.P.No.132 of 2010 on the file of the Principal Sub Court, Pudukkottai. For Petitioner : Mr.A.Xavier Antony Samy For R1 : Mr.P.Ganapathi Subramanian For R2 : No Appearance ***** ORDER The present civil revision petition is filed by the third party against the Judgment and Decree dated 21.03.2024 made in E.A.No.54 of 2023 in E.A.No.72 of 2022 in E.A.No.129 of 2021 in E.P.No.132 of 2010 on the file of the Principal Sub Court, Pudukkottai.

¶2The plaintiff in the suit namely Indira Nadanam is the 1st respondent herein who had filed the suit in O.S.No.89 of 2005 for specific performance and to register the sale deed, failing which the Court may direct to execute the sale deed. The defendant in the suit namely Chokkalingm is the 2nd respondent herein, who is the father of the revision petitioner Rajalakshmi.

¶3The plaintiff in the suit had stated that they had executed an unregistered sale deed dated 16.09.2002 by fixing the sale consideration as Rs.4,00,000/- and the plaintiff had paid advance of Rs.3,45,000/- and the balance of Rs.25,000/- payable on vacating the house by the said Chokkalingam and thereafter, the sale deed shall be executed. Based on the sale agreement, the plaintiff was ready and willing to pay the balance amount of Rs.25,000/- and insisted the defendant thereunder to register the sale deed but failed to execute the same. Thereafter, the plaintiff had issued lawyer notice dated 25.05.2005 calling the defendant to come forward and execute the sale deed. But the defendant for the reasons best known to them, did not come forward to execute the sale deed. Further the defendant had received the lawyer notice but had not replied. Hence, the suit was filed.

¶4In the suit Sub Registrar, Pudukottai was arrayed as 2nd defendant. The 1st defendant remained exparte, the 2nd defendant Sub Registrar has filed a written statement stating that he is an unnecessary party and he is not having any objection in allowing the suit. The Trial Court had framed the issues which are as follows:

(i) Whether the Plaintiff is entitled to the relief of specific performance against the 1st Defendant?

(ii) Whether the 2nd Defendant is the necessary party?

(iii) To what other reliefs, the parties are entitled to?

¶5While considering the 1st issue, the Trial Court has held that in order to prove the genuineness of the sale agreement, the 1st defendant is an appropriate party, but the 1st defendant failed to appear, hence held the plaintiff is entitled to the relief. The relevant portion of the judgment is extracted hereunder: ",e;ePjpkd;wj;jpy; jhf;fy; nra;ag;gl;bUf;Fk; th.rh.M.1-id ghHf;Fk;NghJ> 1-k; gpujpthjpf;Fk;> thjpf;Fk; fpua xg;ge;jk; Vw;gl;Ls;snjd;gJ njhpa tUfpwJ. Me;j fpua xg;ge;jk; cz;ikahdjy;y vd;Wk;> Vw;Wf;nfhs;tjw;fpy;iy vd;W nrhy;tjw;F 1-k; gpujpthjp ,e;ePjpkd;wj;jpy; M[uhfp mtUila fl;rpia Kd; itj;Jf;nfhs;stpy;iy. ,e;j epiyapy; ,e;j fpua xg;ge;jkhdJ cz;ikahdjh? vd;Wk;> Vw;Wf;nfhs;sf;$bajh? vd;Wk; KbT nra;aNtz;bajhf cs;sJ. fpiua xg;ge;jj;jpd; mbg;gilapy; 1-k; gpujpthjp ele;J nfhs;stpy;iynad;gJ th.rh.M.2-,d; %yk; njhpa tUfpwJ. mwptpg;ig ngw;w gpwFk; $l ,e;j 1-k; gpujpthjp> jhth nrhj;ij> thjpf;F fpuak; nra;J nfhLf;ftpy;iynad;gJ th.rh.M.2-,d; %yk;

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¶6Thereafter, the suit was allowed on 20.04.2007. The plaintiff had filed E.P.No.132 of 2010. Then the defendant Chokkalingam had filed E.A.No.1 of 2015 praying to set aside the order dated 20.11.2015, which was dismissed for default.

¶7The primary contention of the revision petitioner is that the property was settled by the father through the settlement deed vide Document No.2663/2004 dated

14.09.2004, at that point of time the revision petitioner is minor hence the same was executed by impleading the mother as the guardian. When the property is settled in her name, the father is not having any power to execute the alleged sale agreement. It is seen the sale agreement was executed on 16.09.2002 but the settlement deed was executed on 14.09.2004 which is obviously subsequent to the sale agreement. But whether the property is ancestral or self-acquired property, whether the revision petitioner is entitled to a share in the property, all these aspects ought to be considered.

¶8The next contention of the revision petitioner, after the demise of the father, all these years based on the said settlement the revision petitioner along with the mother was in possession and enjoyment of the suit property. When the revision petitioner and her mother was in possession which is known to the plaintiff ought to have impleaded them as a party in the suit. When the suit was filed in the year 2005, the alleged settlement deed was already executed. In such circumstances, the plaintiff ought to have impleaded the revision petitioner along with her mother. If the plaintiff had taken earnest effort to search the encumbrance, then the said settlement deed would have come to his knowledge.

¶9On perusing the documents marked by the plaintiff it is seen the alleged original copy of the sale agreement and the xerox copy of the sale agreement was marked as Ex.A1 and Ex.A2, then Ex.A3 is the lawyer notice, Ex.A4 is the parent document. Which indicates, the plaintiff has not verified the subsequent encumbrances after execution of the sale agreement. Had the plaintiff verified the encumbrances, then the settlement deed 14.09.2004 would have come to the knowledge of the plaintiff and he would have impleaded the mother and the revision petitioner. Further the suit is filed on 30.06.2005 which is after the said settlement.

¶10The next issue that was raised by the revision petitioner, even though the 1st defendant remained exparte, the Trial Court ought to have formulated the appropriate issues for the suit for specific performance. Of late the Courts are not formulating the appropriate issue for the suit of specific performance. The plaintiff praying specific performance ought to prove the genuineness of the sale agreement, the payment was received, further he was always ready and willing and he has means to pay the balance amount. Whether time is essence for the contract, whether any other condition imposed in the sale agreement, whether that has been complied by the parties. Whether the unregistered sale agreement is valid, when the registration is made compulsory in the Central Act. Whether the sale agreement was entered under the guise of loan transaction, since most of the loan transaction are under the guise of sale agreements. No such issue was formulated by the Trial Court. As stated supra, the Trial Court has framed whether the plaintiff is entitled to the relief of specific performance, was the sole issue framed for the prayer of specific performance.

¶11Interestingly, the Trial Court has held that the 1st defendant ought to have contested the genuineness of the transaction but he remained exparte and he failed to contest the same. Whenever the defendant remained exparte, it is the bounded duty of the Trial Court to protect the interest of the defendant who remained exparte.

¶12In other words, the duty/burden is heavy on the Courts. The specific performance relief is an equity relief. The plaintiff cannot claim the same as a right. Therefore, this Court is of the considered opinion that the revision petitioner ought to be granted an opportunity to contest the suit based on the sale agreement dated

14.09.2004.

¶13Therefore the orders passed in E.A.No.54 of 2023, then in E.A.No.72 of 2022 and then in E.A.No.129 of 2021 are set aside. The Executing Court shall restore the E.A.No.129 of 2021 and hear the same under Section 47 of CPC and pass orders.

¶14With the above said observations, the civil revision petition is allowed. No costs. C.M.P.(MD)No.15918 of 2024 is allowed and C.M.P.(MD)No.6643 of 2024 is closed.

11.11.2024 NCC : Yes / No Index : Yes / No Internet : Yes Tmg To

¶1Principal Sub Court, Pudukkottai.

2.The Section Officer, Vernacular Record Section, Madurai Bench of Madras High Court, Madurai.

S.SRIMATHY, J.

Tmg C.R.P.(MD)No.1172 of 2024

11.11.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT