Madras High Court
P.Swaminathan vs M.Chidambaram : 1St on 25 April, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.04.2014
CORAM :
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.Nos.184 and 185 of 1991
A.S.No.184 of 1991:-
1.P.Swaminathan
2.S.Ramaraj
3.S.Loganathan
4.S.Palanivelu :Appellants/Defendants 4 to 7
Vs.
1.M.Chidambaram : 1st respondent/plaintiff
2.D.Mohanraj
3.M.R.Lakshmanan (died)
4.M.S.Venkateswaran
5.Minor Ananthakrishnan
rep by Court Guardian
Mr.R.M.Babu Advocate,
Salem.
6.Minor Rajendran
rep by Court Guardian
Mr.R.M.Babu Advocate,
Salem.
7.Visweswaran
8.Varadammal
9.Mallika (died)
10.Kalyani
11.Minor Durga
12.MUthsami Chettiar
13.Mrs.L.Subburathinam
14.L.Malarraj
15.L.Ramalingam
16.Rajaramalingam
17.L.Lakshmanasundaram
[RR13 to RR17 are brought on
record as Lrs of the deceased
3rd respondent, as per the order
of this court dated.28.08.2003
made in CMP.No.1403 to 1405/1999]
:
Appeal Suit filed under Section 96 of CPC against the Judgment and decree, dated 13.12.1989 passed in Original Suit No.777 of 1982 the Principal Sub Court, Salem.
A.S.No.185 of 1991:-
1.P.Swaminathan
2.S.Ramaraj
3.S.Loganathan
4.S.Palanivelu :Appellants/Defendants 2 to 5
Vs.
1.P.Sadasivam
2.P.Manoharan :R1 and R2/Plaintiffs
3.M.A.MUthusamy :R3/1st Defendant
:
Appeal Suit filed under Section 96 of CPC against the Judgment and decree, dated 13.12.1989 passed in Original Suit No.141 of 1987 the Principal Sub Court, Salem.
For Appellants : Mr.S.Mukunth
in both Appeals for M/s.Sarvabhavman Associates
For R1 in A.S.184/91
For R1 & R2 in A.S.185/91
: Mr.R.Subramanian
For R4 to R8, R10,
R11 and R13 to R17 : No appearance
COMMON JUDGMENT
The defendants 4 to 7 in O.S.No.777 of 1982 on the file of the Principal Subordinate Judge, Salem and the defendants 2 to 5 in O.S.No.141 of 1987 on the file of the Principal Subordinate Judge, Salem, are the appellants.
2.A.S.No.184 of 1991 is filed against O.S.No.777 of 1982 and A.S.No.185 of 1991 is filed against O.S.No.141 of 1987.
3.The case of the plaintiffs in O.S.No.777 of 1982 is as follows:-
The 4th defendant/first appellant herein is the father of the defendants 5 to 7, 13 and 14 and the husband of the 11th defendant. The defendants 8 and 9 are the sons of the 5th defendant. The 10th defendant is the son of the 6th defendant. The 12th defendant is the wife of the 6th defendant. The defendants 4 to 14 are joint family members of which the 4th defendant is the Kartha and the 6th defendant was doing joint family business in Art Silk for and on behalf of the family and its members. The 6th defendant used to purchase Art Silk on credit basis from other businessmen and agreed to supply the Art Silk to those respective businessmen, collected the value and repay the amount to the creditors after making some profit and during such transactions with some creditors, large amounts remained outstanding payable to the creditors by the 6th defendant, as the 6th defendant used the amount collected from the creditors for the benefits of the family members. When the creditors demanded payment from the 6th defendant, the defendants 4 to 7 came forward to discharge the said amount due to the creditors by offering to sell the suit properties and other vacant sites. The defendants 4 to 7 felt that having regard to the huge amount payable by the 6th defendant to the creditors, they may not be in a position to sell the suit properties for good price and therefore, they executed a registered composition trust deed, dated 07.02.1982 in favour of the defendants 1 to 3, empowering the defendants 1 to 3 to sell the suit properties and other properties to discharge the loans incurred by the 6th defendant for the benefit of joint family and also put the defendants 1 to 3 in possession of the suit properties and other properties described in that Trust deed. In pursuance of the said registered composition trust deed, dated 07.02.1982, the defendants 1 to 3 entered into an agreement of sale with the plaintiff on 07.04.1982 in respect of the suit properties, agreeing to sell the property for a sum of Rs.50,000/- in favour of the plaintiff free from all encumbrances within a period of six months from 07.04.1982 and also received a sum of Rs.30,000/- as advance and put the plaintiff in possession of the suit properties. Thereafter, the defendants 4 to 7 started to give trouble to the plaintiff and attempted to wriggle out from the agreement of sale and attempted to dispossess the plaintiff from the possession and enjoyment of the suit properties, claiming that they will not allow the plaintiff to enjoy the suit properties without obtaining a sale deed from the defendants 1 to 3. The plaintiff suspected that the defendants 1 to 3 also colluded with the defendants 4 to 7 and therefore, filed O.S.No.693 of 1982 on the file of the Principal District Munsif, Salem, against the defendants 4 to 7 and obtained an order of injunction in I.A.No.511 of 1982 against them. They also kept the suit property under lock and key and the defendants 4 to 7 filed a written statement and counter in that suit contending that they cancelled the composition trust deed, dated 07.02.1982 executed in favour of the defendants 1 to 3 by a registered cancellation deed, dated 22.05.1982. It is contended by the plaintiff that it is not open to the defendants 4 to 7 to execute such a cancellation deed and the cancellation deed is void abinitio to the knowledge of the defendants 4 to 7. Therefore, the plaintiff sent a lawyer's notice to the defendants 1 to 3 calling upon them to execute a sale deed as per the agreement of sale, dated 07.02.1982 expressing his willingness and readiness to perform his part of contract, but the defendants 1 to 3 did not send any reply. Thereafter, the plaintiff went to Madras for his business purpose and when he returned to Salem on 14.08.1982, he found that the building which was kept under lock and key by him was opened by the defendants 4 to 14 and when he questioned about their high handed activities and the illegal criminal trespass, they replied that they are the owners of the suit properties. The police complaint given by the plaintiff has no effect and the plaintiff also filed application in Contempt No.693 of 1982 against the defendants 4 to 7. The plaintiff understood that the defendants 4 to 11 were instigated by the defendants 1 to 3 and therefore, filed a suit for specific performance of agreement of sale.
4.It is further stated that the defendants 4 to 14 are bound by the said composition trust deed, dated 07.02.1982 executed by the defendants 4 to 7 and pursuant to the composition trust deed, dated 07.02.1982, the defendants 1 to 3 entered into an agreement of sale with the plaintiff and therefore, the defendants 4 to 14 are also bound by the agreement of sale.
5.After the filing of the suit, the plaintiff came to know that on 17.03.1984 a fraudulent, sham and nominal document of sale, dated 28.03.1983 was executed by the 4th defendant in favour of the 15th defendant with a mala fide intention to defeat the rights of the plaintiff to the suit properties and the sale deed executed by the 4th defendant in favour of the 15th defendant was also abinitio void and hit by lis pendens and therefore, the 15th defendant would not get any right in the sale deed. In these circumstances, the suit was filed for the relief of specific performance, praying to execute the sale deed in favour of the plaintiff and for mesne profits.
6.The defendants 1 to 3 filed a statement admitting the allegations made in the plaint regarding the agreement of sale entered into by them with the plaintiff and the composition trust deed executed by the defendants 3 to 7 in their favour. But denied the allegation that they were unwilling to execute the sale deed in favour of the plaintiff. They also denied the allegation that they colluded with the defendants 4 to 7 and they have no objection for passing the decree in favour of the plaintiff as prayed for.
7.The 4th defendant filed a statement stating that the suit is not maintainable. The suit properties did not belong to the family of the defendants 4 to 7 and it belongs to him absolutely and he is the owner of the suit properties. As a owner, he has sold the suit property to the 15th defendant as per the sale deed for a valuable consideration and as a matter of fact, the sale in favour of the 15th defendant was, on the basis of the agreement of sale, executed in favour of the 15th defendant and the 15th defendant also filed O.S.No.47 of 1983 to enforce the said agreement and pursuant to the decree passed in O.S.No.47 of 1983, he executed in favour of the 15th defendant. He also contended that though the defendants 4 to 14 are the members of the joint family, the joint family does not own any property, much less the suit properties and therefore, the defendants 5 to 7 the children do not have any right or title or interest in the suit property and the family of the defendants 4 to 7 is also not a treading family. The 6th defendant is a Broker in Art Silk and he gets commission for the orders, he procured from the customers and he was living with his wife and children separately and the defendants 4, 5 and 7 are the children of the 4th defendant and they are not liable to discharge the debts incurred by the 6th defendant. However, the creditors to the 6th defendant threatened to foist a criminal case against all the members of the family, including womenfolks and under such threat and also at the instance of the 2nd defendant, who is also one of the creditors of the 6th defendant, the defendants 4 to 7 were forced to execute a registered composition trust deed and therefore, the said composition trust deed was not executed voluntarily by the defendants 4, 5 and 7 and the recitals in the composition trust deed are also false and as stated supra, the suit properties are not the joint family properties and they are separate properties of the 4th defendant and none of the creditors consented for the execution of the composition trust deed and he has also disputed the liability of the 6th defendant to an extent of Rs.2,50,000/- payable to the creditors as claimed in the plaint.
8.It is further stated that after the creditors became clam and the situation came under the control of the family members and after the threat and coercion exerted on the defendants 4 to 7 ceased, the composition trust deed was cancelled by the execution of an another deed on 22.05.1982 and the defendants 1 to 3 and other creditors were also aware of the same. After coming to know about the cancellation of the composition trust deed, the defendants 1 to 7 in collusion with the plaintiff created the agreement of sale and no agreement of sale was executed by the defendants 1 to 3 on 07.02.1982 as alleged in the plaint.
9.He also denied the allegation that the income earned by the 6th defendant was utilized by the members of the joint family and the 6th defendant was doing his business on behalf of the joint family and it was the joint family business and the receipt of advance of Rs.30,000/- under the agreement of sale was denied. He also denied the allegation that the defendants 4 to 7 attempted to dispossess the plaintiff and the defendants 1 to 3, after executing the agreement of sale on 07.04.1982 and contended that the plaintiff was never put in possession of the suit properties. He, therefore, prayed that the suit may be dismissed with costs.
10.The 5th defendant filed a separate statement admitting the relationship stating that the defendants 5 to 7 are the children of the 4th defendant and 11th defendant. But denied the allegation that the 4th defendants is the father of the defendants 13 and 14 and he also admitted that the defendants 8 and 9 are his sons. But denied the allegation that the 6th defendant was doing joint family business on behalf of the family and its members. He also stated that after the marriage of the children of the 4th defendant, they started living separately and they were doing independent business and the 5th defendant was working in a private company and he has nothing to do with the business of the 6th defendant. He also denied the allegation that the 6th defendant was having business and was collecting amount and utilized the same for the benefit of the joint family consisting of the defendants 4 to 14. He also denied the allegation that the defendants 4 to 7 came forward to discharge the amount payable by the 6th defendant and stated that the defendants 1 to 3 and others, threatened the defendants 4 to 7 of several criminal prosecution and the defendants 4 to 7 executed a composition trust deed under compulsion and threat and therefore, the composition trust deed is not valid and it is null and void. He also denied the allegation that pursuant to composition trust deed on 07.04.1982, the defendants 1 to 3 executed an agreement of sale on 07.04.1982 in favour of the plaintiff and received advance of Rs.30,000/-. He also alleged that the plaintiff was never put in possession of the suit properties and that was stated only for the purpose of getting order of injunction in O.S.No.693 of 1982. He also contended that the defendants 4 to 7 executed a cancellation deed, dated on 22.05.1982 and revoked all the powers conferred on the defendants 1 to 3. He, therefore, prayed for the dismissal of the suit.
11.The 10th defendant filed a statement stating that the 10th defendant is not bound by the composition trust deed and the composition trust deed was not for the benefit of the 10th defendant and therefore, no decree can be passed against the 10th defendant.
12.The Court Guardian for the 14th defendant also filed a statement to the same effect.
13.The 15th defendant filed a statement denying the allegation that the defendants 4 to 8 are the original owners of the suit property and claimed that the 4th defendant alone was the owner of the suit properties and the defendants 13 and 14 are not the children of the 4th defendant and the defendants 4 to 14 are the members of joint family of which the 4th defendant was the eldest member and the 6th defendant was not doing any joint family business and the 5th defendant was only a broker. He also denied the allegation made in para 5 of the plaint that the 6th defendant was doing business on behalf of the joint family members. He contended that the 6th defendant was doing business and incurred some debts and the creators realized that the 6th defendant has no property to discharge the loan payable by him and therefore, threatened the defendants 4 to 7 that they would give police complaint against all of them and arrest them and put behind the bars and under such threat, undue influence and coercion, got the composition trust deed, dated 07.02.1982 and that deed was not valid document and the defendants 1 to 3 cannot claim any right under the said document and they have no right to enter into an agreement of sale in favour of the plaintiff on 07.04.1982 and as a matter of fact, an agreement of sale said to have been executed in favour of the plaintiff on 07.04.1982, the plaintiff was not put in possession of the suit properties and other properties.
14.He also contended that the agreement of sale, dated 07.04.1982 was created in collusion with the defendants 1 to 3 and the plaintiff was set up by the defendants 1 to 3 and the plaintiff cannot claim any right or possession to the suit properties under the agreement of sale deed, dated 07.04.1982. The defendants 4 to 7 were in possession of the suit properties and they never parted with the possession and contended that the 4th defendant, who was the owner of the suit property as on 05.11.1981 and the 4th defendant agreed to sell the suit property and other properties to the 15th defendant for a sum of Rs.30,000/- and received an advance of Rs.15,000/- on 15.11.1981 and further sum of Rs.10,000/- was paid to the 4th defendant and the 4th defendant die not come forward to execute the sale deed and therefore, the 15th defendant filed O.S.No.47 of 1983 on the file of the Principal Sub Court, Salem, for enforcing the agreement of sale, dated 05.11.1981 and it was decreed and a sale deed was executed in favour of the 15th defendant. He, therefore, contended that he has got valid title to the suit properties and the suit filed in O.S.No.47 of 1983 was not a collusive suit as contended by the plaintiff and he was a bona fide purchaser for value and therefore, the plaintiff cannot claim any right against the 5th defendant.
15.On the basis of the pleadings, the following issues were framed by the trial court:-
1.Whether the agreement of sale, dated 07.08.1982 is true, valid and binding on the defendants 5 to 10?
2.Whether the plaintiff was ready and willing to perform the agreement of sale, dated 07.04.1982?
3.Whether the composition trust deed was obtained by the defendants 1 to 3 from defendants 4 to 7 by force and threat?
4.Whether the composition trust deed was cancelled and whether the cancellation deed was legally valid?
5.Whether any advance was paid under the agreement of sale?
6.Whether the plaintiff is entitled to the relief of specific performance?
7.Whether the plaintiff is entitled to the relief of mesne profit and for recovery of possession?
8.Whether first defendant forcibly took possession of the property on 14.08.1982?
9.Whether the court fee was properly paid?
10.What relief, the plaintiff is entitled to?
16.On 30.10.2008, the following additional issue was framed:-
Whether the sale deed, dated 28.03.1983 executed in favour of the 15th defendant is true, valid and whether such sale deed is affected by lis pendens ?
17.Additional issued framed on 19.08.1987 are as follows:-
1.Whether the agreement of sale deed, 07.04.1982 is binding on the defendants 4 to 5?
2.Whether the plaintiff is entitled to the relief of damages?
18.Pleadings in O.S.No.141 of 1987 is as follows:-
The plaintiffs in O.S.No.141 of 1987 reiterated the the same pleadings stated in O.S.No.777 of 1982.
19.Before going into the pleadings in O.S.No.141 of 1987, it is pertinent to mention that the defendants 4 to 7 in O.S.No.777 of 1982 are the defendants 2 to 5 in O.S.No.141 of 1987.
20.The plaintiffs in O.S.No.141 of 1987 reiterated the allegations made in O.S.No.777 of 1982 with respect to the loan incurred by S.Loganathan, the 4th defendant in this suit and the composition trust deed executed by the defendants 2 to 5 in favour of the defendants 1 to 3 in O.S.No.777 of 1981 and contended that the defendants 1 to 3 in whose favour the composition trust deed was executed by the defendants 2 to 5 in this suit on 07.02.1982, entered into an agreement of sale in respect of the suit property with M.G.Kannan, son of M.R.Govindian for the sale of the suit property at Rs.50,000/- and paid an advance of Rs.30,000/- and put the agreement-holder M.G.Kannan in possession of the suit property. Thereafter, the defendants 2 to 5 attempted to interfere with the possession of the suit property and therefore, he filed the suit O.S.No.681 of 1982 on the file of the District Munsif court, Salem, for injunction against the defendants 2 to 5 and also filed I.A.No.508 of 1982 and the same is in force till the disposal of the suit. The first defendant in this suit filed an application to get himself impleaded in O.S.No.681 of 1982 filed by M.G.Kannan on the file of the District Munsif Court, Salem, which was transfered to the Sub Court, Salem and renumbered as O.S.No.274 of 1984 and that application was dismissed and against the same, the defendants herein preferred revision in CRP No.4919 of 1984 and that was also dismissed. The agreement-holder M.G.Kannan was unable to carry on with the litigations, he requested the plaintiffs to purchase the suit property and therefore, on 27.06.1984, the defendants 1 to 3 in O.S.No.777 of 1982 sold the western portion of the suit property to the 1st plaintiff and the eastern portion to the 2nd plaintiff for consideration of Rs.25,000/- paid by each of them. Thus, the plaintiffs became the absolute owners of the suit property. They also filed O.S.No.682 of 1982 for injunction against the defendants 2 to 5 and the defendants 2 to 5 filed counter and written statement in those two suits, namely O.S.Nos.681 and 682 of 1982 and they did not mention anything about the agreement of sale in favour of the first defendant or the sale in favour of the first defendant by the 2nd defendant and the sale deed in favour of the first defendant was fabricated to defeat the rights of the plaintiffs and the first defendant, in this suit, is the 15th defendant in O.S.No.777 of 1982 and on the basis of the collusive decree obtained in O.S.No.47 of 1983, he claimed to be the owner of the suit property and therefore, the first defendant cannot claim any right over the suit property. Therefore, they filed the suit for declaration that they are the owners of the suit property and for injunction.
21.The first defendant filed a statement contended that the suit property belonged to the 2nd defendant and pleaded ignorance about the composition trust deed alleged to have been executed in favour of the defendants 1 to 3 in O.S.No.777 of 1982 and also pleaded ignorance about his knowledge of that agreement and contended that the composition trust deed was created to defeat the rights of the defendants 2 to 5. He also denied the allegation that the agreement holder and his predecessors were in put in possession of the suit properties under the composition trust deed and also denied the agreement of sale alleged to have entered into by the trustees in favour of the said M.G.Kannan agreeing to sell the suit property to him.
22.He contended that the 2nd defendant entered into an agreement of sale in respect of the suit property with him and as the second defendant evaded to perform his part of contract, he filed the suit O.S.No.47 of 1983 on the file of the Principal Sub Court, Salem and the suit was decreed on 07.03.1983 and pursuant to the decree, a sale deed was executed by the 2nd defendant on 28.03.1983 in his favour and he was also put in possession of the suit property and therefore, he has got valid title to the suit property and therefore, the suit filed by the plaintiffs on the basis of the sale deed, dated 27.06.1984 is not valid and the first defendant is a bona fide purchaser for value and therefore, the plaintiffs are not entitled to the relief of declaration and injunction.
23.The 2nd defendant filed a statement reiterating the very same stand taken by him as the 4th defendant in O.S.No.777 of 1982. The defendants 3 to 5 adopted the statement filed by the 2nd defendant.
24.On the basis of the pleadings, the following issues were framed by the trial court:-
1.Whether the plaintiffs are entitled to the relief of declaration and injunction?
2.Whether the decree passed in O.S.No.47 of 1983 is binding on the plaintiffs?
3.To what relief, the plaintiffs are entitled to?
25.The Additional issues were framed on 23.08.1989, which are as follows:-
1.Whether the plaintiffs were having right and possession over the suit property?
2.Whether the sale deed executed by the Trustees in favour of the plaintiffs is true, valid and binding on the 2nd defendant?
3.Whether the sale deed executed in favour of the first defendant is hit by lis pendens?
4.Whether the composition trust deed, dated 07.02.1982 executed by the defendants 2 to 5 in favour of the Trustees were obtained by force and coercion?
5.Whether the agreement of sale between the Trustees and M.G.Kannan was true, valid and binding on the 2nd defendant?
6.Whether the agreement of sale between the Trustees and M.G.Kannan was executed, after the cancellation of the composition trust deed by the defendants 2 to 5?
26.Both the suits were tried together and evidence was adduced in O.S.No.777 of 1982 and that was adopted in O.S.No.141 of 1987.
27.On the side of the plaintiffs, 8 witnesses were examined, including the 2nd plaintiff as PW1 and 76 documents were marked. On the side of the defendants, the 4nd defendant in O.S.No.777 of 1982 was examined himself as DW1 and 25 documents were marked.
28.As stated supra, the defendants 4 to 7 in O.S.No.777 of 1982 are the defendants 2 to 5 in O.S.No.141 of 1987. The Trustees under the composition trust deed, dated 07.02.1982 are the defendants 1 to 3 in O.S.No.777 of 1982 and in this judgment, they are referred to as Trustees. The subsequent purchaser is the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 is referred to as 'subsequent purchaser'. The 4th defendant in O.S.No.777 of 1982 is the 2nd defendant in O.S.No.141 of 1987 and he is referred to as the owner of the properties and the 6th defendant in O.S.No.777 of 1982 is the 4th defendant in O.S.No.141 of 1987 and he is referred to as 'borrower' for convenient purpose. The plaintiffs in O.S.No.141 of 1987 are referred as purchasers.
29.The Issue Nos.3 and 4 in O.S.No.777 of 1982 and the Issue No.4 in O.S.No.141 of 1987 were tried together and the trial court held that the composition trust deed Ex.A2 dated 07.02.1982 was registered on 08.02.1982 and if really, the composition trust deed was obtained by force and under threat, the defendants 4 to 7 in O.S.No.777 of 1982 and the defendants 2 to 5 in O.S.No.141 of 1987 would have objected, when the document was registered on 08.02.1982 and having registered the document on the next day without any protest, it was proved that Ex.A2 was executed by them to discharge the loan incurred by the borrower and it was not obtained by force or threat or undue influence.
30.The trial court further held that the cancellation deed, dated 22.05.1982 was also not valid, having regard to the provision of section 78 of the Indian Trust Act. The trial court relied upon the judgment of the Hon'ble Supreme court reported in AIR 1969 Bom. 101 [Central Bank Executor & Trustee Co. Ltd., vs. Hormusji Nusserwanji Madraswalla and others], AIR 1951 SC 280 [Bishundeo Narain and another vs. Seogeni Rai and others], AIR 1978 Madras 361 [P.Saraswathi Amal vs. Lakshmi Ammal alias Lakshmi Kantham], AIR 1976 SC 78, [Subhas Chandra Das Mushib vs. Ganga Prasad Das Mushib and others], AIR 1986 AP 342 [Syed Sultan Pai vs. Syed Bikhu Sahib (deceased by L.Rs) and others] and AIR 1978 Patna 48 [Ramji Jankiji and another vs. Mauni Baba Kale Kambalwala Jai Siyaram Dasji and others] in support of such finding.
31.The trial court, therefore, held that Ex.A2 the composition trust deed, dated 07.02.1982 was executed by the family members, namely, the owner, borrower and the children of the owner and they have no right to cancel the said document and therefore, the cancellation of the composition trust deed, dated 22.05.1982 (Ex.A24) is not a valid document and the composition trust deed is binding on the owner/borrower and the children of the owner and the family members and Exs.A42 to A76 would prove that the borrower signed in those documents and he failed to repay the amount to those persons and therefore, the creditors approached the defendants 4, 5 and 7, namely the owner and his children to discharge the loan payable by the borrower and therefore, the Trustees were appointed by the owner, his children and the borrower by executing the composition trust deed and Ex.A19 would also prove that the creditors agreed to abide by the decision of the Trustees and pursuant to that, the owner, his children and the borrower executed the composition trust deed on 07.02.1982 in favour of the trustees to discharge the loan payable by the borrower and later, with an intention to defraud the trustees and creditors, the owner, his children and the borrower executed the cancellation deed (Ex.B24) and therefore, Ex.B24 cancellation deed has no legal sanctity.
32.The trial court also held that the owner, his children and borrower have no right to enter into an agreement of sale in respect of the suit properties in favour of the subsequent purchaser and if really, Ex.A2 composition trust deed was obtained by force and fraudulent, nothing would have prevented the owner, his children and borrower from cancelling the said document, immediately thereafter and the publication made in the evening daily 'Malai Malar' on 27.04.1982, Ex.B7 would also prove that the cancellation deed Ex.B24 was only with an intention of defeating the rights of the creditors. The trial court, therefore, held that the contention of the appellants that the composition trust deed, dated 07.02.1982 was not obtained by the trustees by force and threat and the owners, his sons including the borrower executed the sale agreement, dated 07.04.1982 authorizing the trustees to sell the suit properties of the owner and to discharge the loan payable by the borrower to them and to defeat the rights of the plaintiffs and the purchasers, the owner executed an agreement of sale (Ex.A10) with the subsequent purchaser on 28.03.1983 and held that the cancellation of composition trust deed, by document, dated 22.05.1982 Ex.B24 was not legally valid and Ex.A2 was executed for the purpose of discharging the loan payable by the borrower in favour of the trustees and answered those issues in favour of the plaintiffs.
33.Issue Nos.1, 2, 5 and 6 in O.S.No.777 of 1982 were tried together and held that the agreement of sale deed, dated 07.04.1982 executed by the trustees in favour of the plaintiff was legally valid and the plaintiff was ready and willing to perform his part of contract and also held that the trustees were put in possession of the suit property pursuant to Ex.A2 and the plaintiff in O.S.No.777 of 1982 was put in possession of the suit property, pursuant to the agreement of sale, dated 07.08.1982 (Ex.A1). Even though, the plaintiff was not in possession of the suit property, as per the agreement of sale Ex.A1, the appellants are bound to deliver possession and having regard to the finding that Ex.A1 was also executed by a owner/borrower, the plaintiff in O.S.No.777 of 1982 was entitled to the relief of specific performance and the plaintiff was always ready and willing to perform his part of contract and the advance of Rs.30,000/- was paid under Ex.A1 and therefore, the plaintiff is entitled to the relief of specific performance.
34.The trial court tried Additional Issue Nos.1, 2, 5 and 6 in O.S.No.141 of 1987 together and held that the agreement of sale was executed by the trustees on 07.04.1982 (Ex.A13) with M.G.Kannan and he paid a sum of Rs.20,000/- under (Ex.A13) and the suit properties were in the possession of the owner and borrower and as per the direction of M.G.Kannan, the sale deed was executed in favour of the plaintiffs in O.S.No.141/87 and therefore, they are entitled to declaration and the sale deeds in favour of the purchasers/plaintiffs in O.S.No.141 of 1987 executed pursuant to the agreement of sale, dated 07.04.1982 Ex.A13 are valid and therefore, they are entitled to the relief of declaration and while, answering the Issue No.3 in O.S.No.777 of 1982, it has been held that the composition trust deed was executed by the owner and the borrower, his children and therefore, answered the Additional Issue Nos.1 to 5 in favour of the purchaser, namely the plaintiffs in O.S.No.141 of 1987.
35.The Issue Nos.7 and 8 and the Additional Issue No.2 in O.S.No.777 of 1982 were tried together and held that the plaintiff is entitled to the relief of recovery of possession and also mesne profit at the rate of Rs.500/- from the date of the plaint and answered Issue Nos.7 and 8 in favour of the plaintiff and the Additional Issue No.2 against the plaintiff.
36.The Additional Issue Nos.1 and 2 in O.S.No.777 of 1982 and Additional Issue Nos.2 and 3 in O.S.No.141 of 1987 were tried together and held that the sale deeds in favour of the subsequent purchaser, namely the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 are not valid and the sale is hit by lis pendens and answered those issued in favour of the plaintiffs.
37.Issue No.9 in O.S.No.777 of 1982 was also answered in favour of the plaintiff holding that proper court fee was paid and Issue No.10 in O.S.No.777 of 1982 and Issue Nos.1 and 3 in O.S.No.141 of 1987 were answered in favour of the plaintiff/purchaser that the plaintiff in O.S.No.777 of 1982 is entitled to the relief of specific performance from the defendants and also he is entitled to recovery of possession and the plaintiffs in O.S.No.141 of 1987 are entitled to the relief of declaration and they are not entitled to the relief of injunction, as they are not in possession of the suit property. In the result, O.S.No.777 of 1982 was decreed as prayed for and the defendants 1 to 15 were directed to execute the sale deed in favour of the plaintiff in O.S.No.777 of 1982 and O.S.No.141 of 1987 was decreed in respect of the declaration and dismissed with regard to injunction. Aggrieved by the same, these Appeal Suits are filed.
38.It is submitted by the learned counsel for the appellants in both the appeal suits that the trial court failed to appreciate that in a suit for specific performance, the plaintiff has to prove his readiness and willingness from the date of agreement and till the date of filing of the suit and in this case, there was no proof regarding the readiness and willingness on the part of the plaintiff in O.S.No.777 of 1982.
39.He also submitted that having entered into an agreement of sale with the trustees on 07.04.1982, without filing a suit for specific performance to enforce the agreement of sale, he filed O.S.No.693 of 1982 for injunction and latter, filed the suit O.S.No.777 of 1982 for specific performance of agreement of sale and on the date of filing of O.S.No.693 of 1982, the cause of action for the suit for specific performance was available and without obtaining any leave to file a suit for specific performance, at a later stage, he filed a suit for injunction alone and therefore, the subsequent suit, namely O.S.No.777 of 1982 for specific performance is barred under Order 2 Rule 2 CPC.
40.He also submitted that the trial court, having found that the plaintiff in O.S.No.777 of 1982 was not given possession of the property as alleged by him in the plaint and also as per the recitals in the agreement of sale Ex.A1, ought not to have decreed the suit for specific performance, as the plaintiff in O.S.No.777 of 1982 has come out with a false case regarding possession and being the discretionary relief, the plaintiff himself should come to the court with clean hands and having pleaded that he was put in possession of the suit property and that was found to be false, the trial court ought to have dismissed the suit for specific performance, even assuming that Ex.A2 the composition trust agreement is a valid document. He, therefore, submitted that the trial erred in decreeing the suit O.S.No.777 of 1982.
41.He also submitted that in respect of O.S.No.141 of 1987, an agreement of sale was entered into by the trustees with M.G.Kannan as evidenced by Ex.A13 and thereafter, a sale deed was executed in favour of the purchasers/plaintiffs in O.S.No.141 of 1987 under Exs.A20 and A22, after the cancellation of the composition of trust deed Ex.A2 by the appellants as evidenced by Ex.B24 and hence, the trial court ought to have held that the sale deeds Exs.A20 and A22 executed in favour of the plaintiffs in O.S.No.141 of 1987 and sale deeds were not valid sale deeds and the trustees have no power to execute the sale deeds, after the cancellation of the composition trust deed under Ex.B24.
42.He also submitted that the plaintiffs/purchasers in O.S.No.141 of 1987 were not the agreement holders and therefore, they cannot rely upon the agreement alleged to have been entered into by the trustees and M.G.Kannan as evidenced by Ex.A13 and therefore, the trial court erred in granting the decree in favour of the plaintiffs in O.S.No.141 of 1987 holding that sale in favour of subsequent purchase is hit by lis pendens.
43.He also submitted that the trial court did not properly appreciate the suit filed in O.S.No.47 of 1983 by the subsequent purchaser and Ex.A10 is the sale deed executed in favour of the subsequent purchaser and it is seen from the recitals in that sale deed that the sale deed was executed pursuant to the agreement of sale executed by the appellants in favour of the subsequent purchaser and the agreement of sale is dated 05.11.1981, which is admittedly earlier in point of time, than Ex.A2 the composition trust deed alleged to have been executed by the appellants in favour of the trustees and O.S.No.47 of 1983 was filed by the subsequent purchaser and that suit was decreed and in execution of the decree, the sale deed was executed and therefore, the subsequent purchaser, namely A.Muthusamy gets valid title to the suit property and without appreciating the same, the trial court erred in decreeing the suit as prayed for.
44.He also submitted that the suit property was purchased by the first appellant, namely the 4th defendant P.Swaminathan under Ex.A12 and it was his separate property and admittedly, debts were incurred by the borrower and the business undertaken by the borrower/6th defendant was not proved to be the family business and therefore, the separate property of the 4th defendant, namely the first appellant cannot be the subject matter of Ex.A2 composition trust deed and therefore, the trial court ought to have held that the composition trust deed was not binding on the appellants.
45.He also submitted that the appellants proved that the composition trust deed Ex.A2 was obtained by force and threat and that was evidenced by Ex.B7, the Advertisement given in 'Malai Malar' and the notice issued by owner to the trustees under Ex.B1 and another notice given by the owner under Ex.B2 and also the sale deed executed in favour of the subsequent purchaser under Ex.B10 and all these aspects were not properly appreciated by the trial court and erred in decreeing the suits. He, therefore, submitted that the trial court erred in decreeing the suit for specific performance and for declaration.
46.He also relied upon the judgments reported in (2009)14 SCC 663 [Inderchand Jain (dead) through Lrs vs. Motilal (dead) through Lrs] and 2010-5-L.W.454 [Bajaj Auto Ltd vs. TVS Motor Company Ltd.] in support of his contention that in a suit for specific performance, the plaintiff himself has to prove the readiness and willingness all alone and also for the proposition that the trial court also failed to appreciate Order 18 Rule 1 CPC that a person, who got a 'right to begin' must lead evidence first and having regard to the allegations made in these two suits, the appellants must have been given the right to begin and let in evidence and that was not followed.
47.Mr.R.Subramanian, the learned counsel appearing for the 1st respondent in A.S.No.184 of 1991 and for the respondents 1 and 2 in A.S.No.185 of 1991 has submitted that the suit is not barred under Order 2 Rule 2 CPC and the plaintiff in O.S.No.777 of 1982 proved his readiness and willingness to perform his part of contract through out.
48.He also submitted that the plea of Order 2 Rule 2 CPC was not raised before the trial court and no issue was framed to that effect and the plaint in O.S.No.693 of 1982 was not filed and marked and in the absence of any issue being framed regarding Order 2 Rule 2 CPC and the failure to produce the pleadings in the earlier suits, the appellants cannot invoke the plea of Order 2 Rule 2 CPC in the first appeal and relied upon the judgment reported in (2010) 11 SCC 141 : 2011-1-L.W. 193, [Alka Gupta vs. Narender Kumar Gupta].
49.He also submitted that the suit filed by the plaintiff in O.S.No.693 of 1982 was later transferred to the 1st Additional District Judge, Salem and renumbered as O.S.No.275 of 1984 and that was allowed to be withdrawn by the plaintiff, with liberty to prosecute all the defence and pleadings in O.S.No.777 of 1982 already filed and therefore, having regard to the liberty given by the court while granting permission to withdraw the suit O.S.No.275 of 1984, it cannot be contended that O.S.No.777 of 1982 is barred under Order 2 Rule 2 CPC.
50.He also submitted that the trial court erred in holding that the plaintiff failed to prove that he was given possession of the suit property as per Exs.A1 and A13. The subsequent purchaser, namely the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 filed a suit for injunction against the plaintiffs in O.S.No.141 of 1987 and another and in that suit, the plaintiffs in O.S.No.141 of 1987, namely the respondents 1 and 2 in A.S.No.185 of 1991 filed I.A.No.2654 of 1984 for temporary injunction and that was granted and that would prove that the plaintiff in O.S.No.141 of 1987 and the respondents 1 and 2 in A.S.No.185 of 1991 were in possession of the suit property as per sale deeds Exs.A20 and A21. Further, O.S.No.47 of 1984 filed by the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 was also withdrawn by him with liberty to file a fresh suit and thereafter, he did not file any suit.
51.He also submitted that the agreement holder, namely M.G.Kannan as per Ex.A13 got possession of the suit property and when his possession was disturbed, he filed O.S.No.681 of 1983 (Ex.A2) and got an order of injunction in respect of his possession and that would also prove that the purchaser/Agreement holder M.G.Kannan was put in possession of the suit property as per Ex.A13 and therefore, the trial court erred in holding that the Agreement-holders were not put in possession of the suit property as per Exs.A10 and A13. He also submitted that the trial court has rightly appreciated and held that O.S.No.47 of 1983 filed by the subsequent purchaser, namely the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 was a collusive suit and that was also proved by the facts that the appellants did not contest the suit, even though they filed written statement in that suit and after the decree was passed, they executed a sale deed under Ex.A10 and that would prove the collusion between the appellants and the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 and that the trial court rightly held that the said Muthusamy cannot claim any right or title under the sale deed Ex.A10 and that finding has become final and the subsequent purchaser/15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 has not filed any appeal against the said finding and therefore, the present appeal suits filed by the appellants are also not maintainable. He, therefore, submitted that acceptance of the decree by the subsequent purchaser, namely the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 would debar the appellants from challenging the decree, as they have no right to question the decree passed in these appeal suits. He, therefore, submitted that the appeal suits are liable to be dismissed.
52.On the basis of the above submissions, the following points for consideration arise in these appeal suits:-
1.Whether the composition trust deed Ex.A2 was executed under threat, force and coercion as alleged by the appellants?
2.Whether the cancellation of composition trust deed under Ex.B24 is legally valid?
3.Whether the plaintiff in O.S.No.777 of 1982/the first respondent in A.S.No.184 of 1991 has proved his readiness and willingness to perform his part of contract and is entitled to the decree of specific performance?
4.Whether the suit O.S.No.777 of 1982 and O.S.No.141 of 1987 are barred under Order 2 Rule 2 CPC?
5.Whether the sale in favour of the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 as evidenced by Ex.A10 is a valid sale deed?
6.Whether the trial court was right in denying the relief of injunction, while granting the relief of declaration in O.S.No.141 of 1987?
53.Though, it is contended by the appellants that the suit properties are the separate properties of the first appellant and there was no necessity for the appellants 1, 2 and 4 to execute the composition trust deed Ex.A2 along with the 3rd appellant S.Loganathan, who incurred debts on his own and therefore, the appellants were forced and threatened to execute Ex.A2, the said argument cannot be accepted, having regard to Ex.A6, the partition deed between the first appellant and his brothers and Ex.A10 the sale deed executed by the first appellant in favour of the 15th defendant in O.S.No.777 of 1982.
54.It is the case of the appellants that the appellants 2 to 4 are the sons of the first appellant and the 3rd appellant was doing business and he incurred loss and therefore, at the instance of the creditors, Ex.A2 was obtained by force, but Ex.A6 would prove that the first appellate/owner got properties under a partition between his brothers and therefore, the properties got under Ex.A6 are joint family properties, in which his sons, namely the appellants 2 to 4 are having equal share. In Ex.A10 also, it is admitted that he got properties from his ancestors and he also acquired the properties in his own name and without specifying, whether the properties covered under Ex.A10 was the property acquired without the help of the ancestral property, he conveyed the property to the subsequent purchaser/15th defendant under Ex.A10.
55.It is settled law that when the joint family owns ancestral property and when the Kartha claims some properties acquired in his name as his separate property, the burden is on him to prove that without any help from the income from the joint family properties, he purchased certain properties in his name and those properties were to be treated as his separate property. In this regard, no evidence was let in by the first appellate, who was examined as DW1 to that effect and therefore, having regard to the fact that under Ex.A6, the first appellant got properties in a partition between his brothers and he also admitted the same under Ex.A10, in the absence of any proof that he was having separate income, the properties should be considered as joint family properties and not the separate properties of the first appellant. Therefore, the properties covered under Ex.A2 must be considered as a joint family properties of the appellants and as the properties are considered as the joint family properties of the appellants and the Kartha is entitled to enter into composition trust deed Ex.A2 to discharge the loans incurred by one of the joint family members and therefore, the argument of the learned counsel for the appellants that for the loans incurred by one of the sons of the first appellant, his property cannot be included in the composition trust deed cannot be accepted.
56.Further, the appellants pleaded that Ex.A2 was obtained by force, coercion and under threat. It is settled law that whoever pleads that fraud, coercion or threat, has to plead specifically and also let in evidence to prove the same.
57.In this case, the pleading is also not specific and it has only been stated that the appellants were in the police station and in the presence of police officials, they executed Ex.A2. To substantiate the said pleadings, no witness was examined by the appellants and the first appellant himself examined as DW1 and his evidence was not corroborated by any other evidence. Therefore, it is very difficult to accept the case of the appellants that Ex.A2 was obtained in the manner as alleged in the statement.
58.Further, as rightly held by the trial court that Ex.A2 is dated 07.02.1982 and it was registered on the next day and it is not the case of the appellants that he was kept as a captive till the registration was over and it is also admitted that they were allowed to go to their house and the document was registered on the next day and before the Registering officials, no protest was made by the appellants. There is no explanation given by the appellants for not raising any objection before the Registering officials, when the document was registered on 08.02.1982.
59.Further, it is not stated when the threat, force, coercion exerted by the trustees and other creditors on them ceased and when they were relieved of those fraud, threat etc. Ex.A2 was registered on 08.02.1982 and only on 25.04.1982, notice was given by the first appellant to the trustees, followed by another notice Ex.B2, dated 02.05.1982 and till 25.04.1982, no action was taken by the appellants and only on 27.04.1982, paper publication was given as evidenced by Ex.B7. In Ex.B7, dated 27.04.1982, it has not been specifically stated that when he became free from the clutches of the creditors and the trustees.
60.A reading of Ex.B7 would make it clear that after the registration of Ex.A2, there was no force or threat exerted by the creditors and the trustees and the appellants were allowed to move freely. Nevertheless, no attempt was made by the appellants, either to cancel the composition trust deed Ex.A2 and that was done only on 22.05.1982. As stated supra, no attempt was made by the appellants to prove the fraud or threat or force exerted on them by the trustees and creditors, except the oral evidence of DW1 and therefore, the trial court rightly held that the appellants failed to prove that Ex.A2 was obtained by force from the appellants and when Ex.A2 was a valid document, it cannot be cancelled at the whims and fancies with the appellants, having regard to sections 78 and 79 of the Indian Trust Act, 1882.
61.Under section 78 of the Indian Trust Act, a trust can be revoked-
(a)where all the beneficiaries are competent to contract by their consent;
(b)where the trust has been declared by a non-testamentary instrument or by word of mouth in exercise of a power of revocation expressly reserved to the author of the trust or [c]where the trust is for the payment of the debts of the author of the trust and has not been communicated to the creditors, at the pleasure of the author of the trust.
62.It is seen from Ex.A2 that the trust has been created for the purpose of payment payable by the author of the trust. It is also seen from Ex.A19 that all the creditors were informed about the execution of composition trust deed in favour of the trustees and they also gave their consent. Therefore, when the trust is for the payment of debts and has been communicated to the creditors, the same cannot be revoked at the pleasure of the author of the trust. Similarly, trust cannot be revoked, when no express power is given in the trust deed to revoke the trust by the author of the trust. Admittedly, no such power is given to the author of the trust under Ex.A2 and the execution of the trust deed for the purpose of payment to the creditors was also known to the creditors as evidenced by Ex.A19 and hence, it cannot be revoked by the author of the trust under section 78(b)and (c)of the Indian Trust Act.
63.In this connection, it is also pertinent to mention that the debts incurred by the 3rd appellant has not been disputed. As a matter of fact, the same was also proved by the respondents through Exs.A37 to A76.
64.Even assuming that the debts were incurred by the 3rd appellant for his personal benefit, having regard to the character of the properties, namely joint family properties, all the appellants came to the rescue of the 3rd appellant and executed the composition trust deed to safeguard the 3rd respondent from the clutches of the creditors and it has been held that the composition trust deed Ex.A2 was not obtained by threat or force and therefore, having regard to the provision of 78(b) and (c) of the Indian Trust Act and having regard to Ex.A19, the trust cannot be revoked and therefore, the points for consideration 1 and 2 are answered against the appellants holding that Ex.A2 was not obtained by force or coercion as alleged by the appellants and the appellants also failed to prove the same and the cancellation of trust deed Ex.A24 is not valid.
65.It is the contention of the learned counsel for the appellants that the plaintiff in O.S.No.777 of 1982 has already filed O.S.No.693 of 1982 for injunction against the appellants and also obtained injunction in I.A.No.511 of 1982 and at that time, the cause of action for filing the suit for specific performance was available with him and deliberately, he has not filed the suit for specific performance and he filed the suit for injunction and therefore, the suit O.S.No.27 of 1982 is barred by Order 2 Rule 2 CPC
66.He also contended that the other agreement holder, by name M.G.Kannan also filed O.S.No.681 of 1982 for injunction, even after entering into the agreement of sale with the trustees on 07.08.1982, he ought to have filed the suit for specific performance and without filing the suit for specific performance and without obtaining leave from the court, subsequent filing of the suit by the plaintiff in O.S.No.141 of 1987 is also barred under Order 2 Rule 2 CPC. Admittedly, the issue was not raised before the trial court and no issue was framed by the trial court regarding the bar under Order 2 Rule 2 CPC.
67.Further, to consider the plea under Order 2 Rule 2 CPC, the pleadings in the earlier suit are necessary. In this case, no attempt was made by the appellants to mark the pleadings in O.S.No.681, 682 and 693 of 1982. On the other hand, it is seen from Ex.A7 that O.S.No.275 of 1984 was pending on the file of the Sub Court, Salem filed by the first respondent was allowed to withdraw the said suit with liberty to take up all the pleas in O.S.No.777 of 1982.
68.It is seen from the record that O.S.No.693 of 1982 filed on the file of the District Munsif, Salem, was transferred to Sub Court, Salem and renumbered as O.S.No.275 of 1984 and during the pendency of that suit, O.S.No.777 of 1987 was filed and therefore, application was filed in I.A.Nos.555 of 1984 in O.S.No.275 of 1984 seeking liberty to withdraw the suit and take the same plea in the comprehensive suit O.S.No.777 of 1982 and liberty was granted as evidenced by Ex.A7. Therefore, it cannot be contended that O.S.No.777 of 1982 is barred under Order 2 Rule 2 CPC.
69.Further, as rightly contended by the learned counsel for the 1st respondent in A.S.No.184 of 1991 and the respondents 1 and 2 in A.s.No.185 of 1991 that as per the judgment reported in (2010)11 SCC 141 : 2011-1-L.W. 193[Alka Gupta vs. Narender Kumar Gupta], unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that plea, the court cannot examine or reject a suit on that ground and the pleadings in the earlier suit should be exhibited or marked with consent or admitted by both sides and the plaintiff should have been given an opportunity to explain or demonstrate that the second suit was based on the different cause of action and therefore, the Hon'ble Supreme court held that the dismissal of the suit by the High Court under Order 2 Rule 2 CPC, in the absence of any plea by the defendant is untenable.
70.Having regard to the above facts, it cannot be contended that O.S.No.777 of 1982 was barred under Order 2 Rule 2 CPC. The same argument applies to O.S.No.141 of 1987 and as matter of fact O.S.No.141 of 1987 is on the better footing and admittedly, O.S.No.141 of 1987 was filed by the purchaser for declaration of his title as per sale deed executed in their favour by the trustees under Exs.A20 and A21, pursuant to the agreement of sale Ex.A13 executed by the trustees in favour of M.G.Kannan.
71.Admittedly, the trustees entered into an agreement of sale with M.G.Kannan and as per the direction of M.G.Kannan, the trustees executed the sale deeds under Exs.A20 and A21 in favour of the plaintiffs in O.S.No.141 of 1987 and O.S.No.681 of 1983 was filed by M.G.Kannan and no materials were placed about the nature of pleadings in O.S.No.681 of 1983 and the result in that suit. Hence, it cannot be contended that the suit in O.S.No.141 of 1987 is barred under Order 2 Rule 2 CPC. Hence, I answer the point for consideration No.4 against the plaintiffs holding that O.S.No.777 of 1982 and O.S.No.141 of 1987 were not barred under Order 2 Rule 2 CPC.
72.It is the case of the appellants that even assuming that the first respondent in A.S.No.184 of 1991 is an agreement holder, he is not entitled to the relief of specific performance in the absence of plea of readiness and willing to prove his part of the contract. He also submitted that the trial court having given a finding that the first appellant in A.S.No.184 of 1991, namely the plaintiff in O.S.No.777 of 1982 was not in possession of the suit property as alleged by him, the discretionary relief of specific performance cannot be given as the plaintiff in O.S.No.777 of 1982 came forward with false case. According to me, the trial court erred in holding that the plaintiff O.S.No.777 of 1982 was not given possession of the property.
73.Further, it is seen from Ex.A3 that injunction was granted in I.A.No.511 of 1982 O.S.No.693 of 1982 in favour of the plaintiffs in O.S.No.27 of 1982 restraining the appellants from interfering with the possession and enjoyment of the suit property and no contra evidence was let in by the appellants to prove that the plaintiffs was not put in possession of the suit property by the trustees or injunction in I.A.No.511 of 1982 and also in O.S.No.693 of 1982 was vacated on the ground that the plaintiffs did not prove their possession under the agreement of sale.
74.Further, the subject matter of O.S.No.777 of 1982 is Door No.15 (Old No.16), Panduranga Vittal Street, Gugai, Salem and it is admitted by DW1 that he alone is residing in Door No.15, Panduranga Vittal Street, Gugai and the appellants 2 to 4 are living separately in Karungal Patti main Road, but as per the recitals in Ex.A2 all the appellants are residing in Panduranga Vittal Street and it is wrong. Further, in Ex.B24 the cancellation trust deed address was given to the appellants as Door No.15 (Old No.16), Panduranga Vittal Street, Gugai, Salem and in his evidence, DW1 deposed that he objected to the giving of such address in Ex.A24 and as he was residing in Karungal Patti Main Road by that time. Nevertheless, it was wrongly typed as if they were residing in Panduranga Vittal Street, Gugai, Salem. He also admitted that under Exs.B5, B6 and B7 his addressed was wrongly given as Panduranga Vittal Street, Gugai, Salem and he did not object for the same. Therefore, it is admitted by DW1 that he is not residing at Panduranga Vittal Street, which is the subject matter of O.S.No.777 of 1982 and that would also prove that the first respondent in A.S.No.184 of 1991 was put in possession of the suit property, namely Panduranga Vittal Street as admitted by the first defendant. Therefore, the trial court, without considering these aspects, erred in holding that the plaintiff in O.S.No.777 of 1982 was not put in possession of the property and granted the relief of possession. According to me, even assuming that the plaintiff in O.S.No.777 of 1982 was not put in possession, as contented by the appellants, the trial court has got power to grant the relief of possession in a suit for specific performance and on that ground, the judgment and decree cannot be set aside.
75.Further, in a suit for specific performance, the defendants must also come to the court with clean hands and they cannot find fault with the plaintiffs' case and get the dismissal order. As stated supra, the defendants, namely the appellants having executed Ex.A2 and contended that Ex.A2 was obtained by fraud and failed to prove the same and the cancellation of Ex.A2 under Ex.B24 was not also legally valid and considering the conduct of the defendants in coming with the false case, the trial court has rightly held that the plaintiff in O.S.No.777 of 1982 is entitled to the relief of specific performance.
76.Further, in this case, on the side of the plaintiffs, six witnesses were examined and PW1 is the plaintiff and therefore, from the evidence of PW1 to PW6, the means of the plaintiffs was proved and as evidenced by Ex.A4 against the consideration of Rs.55,000/-, Rs.35,000/- was paid and Rs.20,000/- was the balance and it is not the case of the appellants that the plaintiff is not a man of means and he has no means to pay the balance sale consideration and considering all these aspects, the trial court rightly held that the plaintiff in O.S.No.777 of 1982 has proved his readiness and willingness and rightly granted the decree of specific performance and answered the point for consideration No.3 against the appellants.
77.As rightly submitted by the learned counsel for the respondents that the subsequent purchaser, namely the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 accepted the decree and has not filed any appeal. Further, he is closely related to the first appellant and having known that the trust deed was executed by the appellants in favour of the trustees and the property was purchased under Ex.A10 by the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987, it cannot be contended by the appellants that the sale was executed pursuant to the agreement of sale entered into between the first appellant and the 15th defendant on 15.11.1981 and it is earlier in point of time, than Ex.A2 and the suit was filed by the 15th defendant in O.S.No.47 of 1983 to enforce the agreement of sale and decree was passed and pursuant to the decree, Ex.A10 was executed and therefore, the title of the 15th defendant cannot be impeached by reason of Ex.A1 or Exs.A20 and A21 cannot be accepted. The suit O.S.No.47 of 1983 has to be termed as a collusive suit by the conduct of the parties. Even though statement was filed in O.S.No.47 of 1983, no evidence was let in by the appellants and they remained ex-parte and after obtaining the ex-parte decree, they came forward to execute the sale deed, pursuant to the decree passed in O.S.No.47 of 1983 and that only prove that in order to defeat the rights of the respondents as per Exs.A2, A1, A20, A21, O.S.No.47 of 2003 was filed fabricating an agreement of sale earlier to Ex.A2 and pursuant to the decree, the sale deed was executed by the first appellant under Ex.A14.
78.Further, as per Ex.A10 possession was stated to be given to the 15th defendant and that was also proved to be false by Ex.B24 and O.S.No.47 of 1983 was filed by the 15th defendant against the plaintiffs in O.S.No.141 of 1987 for injunction and even though, injunction was granted thereafter I.A.No.2654 of 1984 was filed by the plaintiffs in O.S.No.141 of 1987 for vacating the order of injunction and that was allowed as evidenced by Exs.A24 to A31. Therefore, it would also prove that the subsequent purchaser, namely the first defendant in O.S.No.777 of 1982 was not found to be in possession of the suit property and that would also prove that the sale deed was only a nominal sale deed executed to defeat the rights of the respondents. Hence, I hold that the sale deed in favour of the subsequent purchaser is not a valid one and it will not affect the right and title of the plaintiffs in O.S.No.141 of 1987 and the plaintiff is in O.S.No.777 of 1982 and answer the point No.5 against the appellants.
79.O.S.No.141 of 1987 was filed by the plaintiffs for declaration and injunction and they purchased the suit property under Ex.A21 and Ex.A30 and the trustees entered into an agreement of sale with M.G.Kannan and the agreement holder has got right to nominate a person on his behalf and as per the direction of the agreement holder M.G.Kannan, sale deeds were executed under Exs.A20 and A21 by the trustees in favour of the plaintiffs in O.S.No.141 of 1987. The trial court rightly held that they are entitled to declaration of title to the suit property, but wrongly held that they are not entitled the relief of injunction. According to me, the trial court ought to have held that the suit in O.S.No.141 of 1987 is decreed as prayed for, having regard to the order passed in I.A.No.2654 of 1984 in O.S.No.17 of 1984.
80.As stated supra, injunction granted in favour of the 15th defendant in O.S.No.777 of 1982 and the first defendant in O.S.No.141 of 1987 was vacated and that would prove that the plaintiffs in O.S.No.141 of 1987 are in possession of the suit property and when they are entitled to declaration of the title and proved their possession, the trial court ought to have granted to the decree of declaration and injunction and the finding of the trial court that they are not entitled to decree of injunction is erroneous and it is set aside and point for consideration No.6 is answered in favour of the plaintiff in O.S.141 if 1987.
81.In the result, the judgment and decree of the trial court passed in O.S.No.777 of 1982 are confirmed and the decree passed in O.S.No.141 of 1987 is also confirmed with the modification to the effect that the plaintiffs in O.S.No.141 of 1987 are also entitled to the relief of injunction in addition to the main relief of declaration. No costs.
Index:Yes 25.04.2014 Internet:Yes er R.S.RAMANATHAN, J er To, The Principal Sub Court, Salem. common judgment made in A.S.Nos.184 and 185 of 1991 25.04.2014