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D. Murugan & Another v/s Murugan & Others

    S.A(MD). No. 592 of 2009

    Decided On, 11 March 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. PONGIAPPAN

    For the Appellants: M.P. Senthil, Advocate. For the Respondents: R2 to R6, J. Anandakumar, R7, D. Saravanan, Advocates.



Judgment Text

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed in A.S.No.1 of 2006 on the file of the learned Principal District Judge, Thoothukudi dated 11.07.2008 confirming the judgment and decree passed in O.S.No.175 of 1996 on the file of the Subordinate Judge, Thoothukudi dated 24.11.2005.)

1. Aggrieved over the concurrent judgments and decrees dated 24.11.2005 and 11.07.2008 made by the learned Subordinate Judge, Thoothukudi and the learned Principal District Judge, Thoothukudi respectively, the appellants herein who are the legal heirs of the first plaintiff, filed this appeal to set aside the judgment and decree dated 11.07.2008 passed in A.S.No.01 of 2006 on the file of the learned Principal District Judge, Thoothukudi confirming the judgment and decree passed in O.S.No.175 of 1996 on the file of the Subordinate Judge, Thoothukudi dated 24.11.2005.

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2.The deceased first plaintiff Lakshmi Ammal filed a suit before the learned Subordinate Judge, Thoothukudi seeking the relief to pass a decree for specific performance directing the defendants to execute a sale deed on receipt of the balance consideration of Rs.1,27,827/- and to award the cost. As already stated, the learned Subordinate Judge, Thoothukudi on 24.11.2005 dismissed the appeal. As against the judgment and decree, the legal heirs of the deceased plaintiff, Lakshmi Ammal filed an appeal in A.S.No.01 of 2006 on the file of the learned Principal District Judge, Thoothukudi. The learned Principal District Judge, Thoothukudi has also dismissed the appeal. Feeling aggrieved by the same, the appellants herein have filed the present second appeal to set aside the judgment and decree passed by the learned Principal District Judge, Thoothukudi.

3. For the sake of convenience, the parties are referred to as, as described by the trial Court.

4. The averments made in the plaint, in brief, are as follows:-

On 20.07.1993, the father of the defendants entered into a sale agreement with the deceased first plaintiff and agreed to sell the suit schedule property to an extent of 10 acres 21 cents for the total consideration of Rs.1,37,835/- and also received an advance of Rs.1,00,008/-. The first plaintiff was always ready and willing to perform her part of the contract to get the sale deed on payment of the balance sale price. The father of the defendants will not execute the sale deed, even he has not produced the original sale deed pertaining to the suit schedule property. So, the plaintiffs sent a notice on 10.07.1996 to the deceased Kandasamy Pillai, which was returned on 17.07.1996 as he was died. Immediately the plaintiffs contacted the legal heirs of the deceased Kandasamy Pillai and requested to execute a sale deed on receipt of balance consideration. But the first defendant refused to do so. Hence, the plaintiffs filed the suit.

5. The averments made in the written statement filed by the first defendant and adopted by the defendants 2 to 6, in brief, are as follows:-

The name of the defendants four and six are not correct. The date of the sale agreement was admitted by the defendants. It is not correct to state that the deceased Kandasamy Pillai was refused to execute a sale deed. The suit property is the ancestral property and documents in respect of the same, is not available. In respect of the suit schedule property, the patta alone is available in the name of the deceased Kandasamy Pillai. In fact, after one month from the date of agreement, the plaintiffs sent a third party and asked the deceased Kandasamy Pillai for reducing the sale price from the sale amount already agreed. Meanwhile, on 15.09.1995 the said Kandasamy Pillai was died. Without knowing the death of Kandasamy Pillai, the plaintiffs sent a notice only on 10.07.1996, which proves that the plaintiffs are not having any readiness and willingness. The suit is not maintainable. The plaintiffs are not entitled to any relief as prayed in the suit.

6. The averments made in the written statement filed by the seventh defendant is that the suit schedule property was purchased by the seventh defendant on 07.09.1999 itself. He did not know about the suit sale agreement. He is the bone fide purchaser.

7. Based on the above said pleadings, the learned Subordinate Judge, Thoothukudi, had framed necessary issues and tried the suit.

8. Before the trial Court, during the time of trial, on the side of the plaintiffs, the second plaintiff Murugan was examined himself as P.W.1 and one Jeevan was examined as P.W.2, seven documents were marked as Ex.A.1 to Ex.A.7. On the side of the defendants, the defendants 1 and 7 were examined themselves as D.W.1 and D.W.2 respectively and one MasanaKonar was examined as D.W.3. Further, three documents were marked on his side as Ex.B.1 to Ex.B.3.

9. After concluding the trial, the learned Subordinate Judge, Thoothukudi, came to the conclusion that the plaintiffs have not proved their readiness and willingness and thereby, they have not entitled to the relief of specific performance. Accordingly, he dismissed the suit.

10. In the appeal, the learned Principal District Judge, Thoothukudi, had also confirmed the same view and dismissed the first appeal.

11. In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-

1. Whether the findings of the Courts below are vitiated by its failure to consider the readiness and willingness on the part of the appellants and the evidence of P.W.1 and P.W.2 as well as the admission of D.W.1 particularly with reference to the approach of P.W.2 to the deceased vendor under Ex.A.1?

2. Whether the Courts below is right in holding that the appellant failed to establish the readiness and willingness on the part of the appellant with reference to Ex.A.1 especially when it is proved by the evidence of P.W.1 and P.W.2 in the absence of any contra evidence?

Substantial Questions of Law No.1 and 2:

12. It is the specific case that the suit sale agreement dated 20.07.1993 (Ex.A.1) was admitted by either side as true one. In this regard, D.W.1 in his cross examination specifically admitted that his father entered into a sale agreement with one Lakshmi Ammal. It is also admitted by either side that a sum of Rs.1,00,008/- was received by the said Kandasamy Pillai as advance from the deceased Lakshmi Ammal. Before the trial Court the plaintiffs have taken a stand that since the defendants have not given the original sale deed in respect to suit property, the plaintiffs are not in a position to perform their part of contract within the time. However, P.W.2 Jeevan, who is the Manager of the deceased Lakshmi Ammal (first appellant) has stated in his evidence as lastly on June 1995, he met the deceased Kandasamy Pillai and requested to execute the sale deed. In the said circumstances, it is to be noted that after execution of sale agreement on 20.07.1993, the plaintiffs sent a legal notice only on 10.07.1996 after the period of three years. On a close reading of the suit sale agreement, it appears that the last date for execution of sale deed is 31.10.1994. Even though there was a period of three years is available as a limitation to file the suit. In this type of suit, the plaintiffs must always show their readiness and willingness. In the judgment reported in 2003(3) MLJ 106, the Court has concluded that the readiness and wiliness to perform his part of contract, should be present continuously from the date of agreement till the date of suit.

13. But in this case, the manner of sending notice after the period of three years, will reveal that the plaintiffs have not proved their readiness and willingness. P.W.1 admitted that P.W.2 had approached the deceased vendor before sending notice. In order to prove the same except the evidence given by the P.W.2 no other written documents were produced on the side of the plaintiffs. As already pointed out P.W.2 himself admitted that he met the Kandasamy Pillai lastly on June 1995. Even if the said evidence is true one, the plaintiffs sent the demand notice only on 10.07.1996 i.e., after one year from the date on which the oral demand was made by P.W.1. As per the case of the plaintiff out of the total sale price 90% of the sale amount was paid to the defendant on the date of agreement itself. If really the said fact is true, there is no necessity for the plaintiffs to wait for the period of three years for sending notice to the defendant. Culling out of the entire circumstances, shows that the plaintiffs are not having any readiness and willingness to perform the contract as per the sale agreement. The Courts below were also came to the same conclusion and dismissed the suit. Accordingly, the substantial questions of law are answered and decided in favour of the defendants.

14. In the result, this Second Appeal is dismissed, by confirming the Judgment and Decree dated 11.07.2006, passed in A.S.No.01 of 2006, by the learned Principal District Judge, Thoothukudi and the Judgment and Decree, dated 24.11.2005 in O.S.No.175 of 1996 on the file of the Subordinate Judge, Thoothukudi. No costs
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