Madras High Court
Rajamani And Another vs Somasundaram And 3 Others on 6 February, 2001
Equivalent citations: (2001)1MLJ797
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
ORDER
1. The substantial question of law that arose for consideration, while ordering notice of motion in this Second Appeal, was "Whether the Judgment and Decree in O.S.No.306 of 1986 is a nullity in so far as the plaintiff in the present action is concerned, in the absence of the present plaintiff having not sued for setting aside the decree in O.S.No.305 of 1986?"
2. The first respondent herein filed a suit in O.S.No.315 of 1986 against one M.Muthuswamy now deceased for specific performance of the agreement dated 14-3-1986 by directing the said M.Muthuswamy to execute the necessary sale deed in favour of the first respondent herein by accepting-the balance of sale consideration of Rs.35,000 and hand over vacant possession of the suit schedule property. According to the first respondent, the said M.Muthuswamy, was the sole defendant and after his death and after impleading of the present appellants, as well as respondents 2 to 4, was arrayed as first defendant, entered into the sale agreement dated 14-3-1986, in and by which, the first defendant agreed to sell the suit schedule property to the first respondent herein for a sale consideration of Rs.40,000 by, accepting a sum of Rs.5000 towards advance, that as per the agreement, the balance sum of Rs.35,000 had to be paid by the first respondent within a period of three months from the date of agreement, that the sale price was fixed taking into account the standing plantain crops and coconut trees as well, that though the first respondent was ready and willing to perform his part of the contract and get the sale deed executed, the first defendant was attempting to dispose of the property to some third parties, that therefore, the first respondent issued a legal notice dated 5-10-1985 inspite of which, the first defendant failed to execute the necessary sale deed, that on the date of execution of the agreement, the first defendant handed over the parent title deeds to the first respondent and therefore, the decree for specific performance should be granted.
3. To the said suit, the first defendant filed a written statement denying the various averments contained in the plaint and contended that the suit schedule property was a joint family property and therefore he had no right to sell the property individually. The said written statement was filed on 27.1.1987. It was also contended in the said suit that the first defendant had been restrained by orders of the Court from selling the property, though no details about the Court order was mentioned in the said written statement.
4. Subsequently, after the demise of the first defendant, the present appellants and respondents 2 to 4 resisted the suit. A written statement was filed on behalf of the present appellants on 23.4.1996 contending that no sale agreement was ever executed by the first defendant, that the suit property was worth over four lakhs as on that date and therefore no prudent man would have ever agreed to sell such a valuable property for a low price of Rs.40,000, that the first defendant was not the absolute and exclusive owner of the suit property, that as a matter of fact, a partition suit as between first defendant and the other defendants was filed and a decree has also been passed and that the decree as prayed for by the first respondent could not be granted.
5. The first respondent filed as many as seven documents- marked as Exs.A1 to A7. While on behalf of the appellants, Exs.B1 to B3 were filed. On the side of the first Respondent, P.Ws.1 and 2 were examined, while on the side of the appellants, first appellant was examined as D.W.1. The trial Court, on a detailed consideration of the evidence placed before it, held that Ex.A.1, the sale agreement was truly executed by the first defendant, that even after the receipt of Ex.A6 legal notice, the first defendant did not send any reply eventhough it was shown that under Ex.A7, the first defendant received the legal notice Ex.A6, that there was no acceptable evidence to show that the suit schedule property was a joint family property and therefore the defendants were bound to execute the necessary sale deed in favour of the first respondent.
6. As regards the preliminary decree in O.S.No.306 of 1986 was concerned, the trial Court held that the same would not bind the first respondent. As against the judgment and decree in O.S.No.305 of 1986 the appellants herein preferred A.S.No.202 of 1997 and the Appellate Court also confirmed the Judgment and Decree of the trial Court. As against which, the present appeal has been preferred by the appellants herein.
7. Only factor which is put in the forefront by the appellants in this second appeal is that the preliminary decree in O.S.306 of 1986 would nullify any relief to be granted in favour of the first respondent based on Ex.A1, dated 14.3.1986. The whole claim of the appellants in this litigation depends upon the acceptance or otherwise of the preliminary decree granted in O.S.No..306 of 1986. It is relevant to note that the suit in O.S.306 of 1986 was filed by the appellants on 2.6.1986 i.e. nearly three months after the execution of Ex.A1 dated 14.3.1986 and few days after the issuance of the legal notice Ex-A6 dated 21.5.1986. The present suit in O.S.No.315 of 1986 was filed by the first respondent on 16.6.1986. The preliminary decree in O.S.No.306 of 1986 came to be passed on 11.8.1986. It is relevant to note that the first defendant herein who was one of the defendants in the said suit was stated to have remained ex parte by the time, the preliminary decree came to be passed on 11.8.1986. The first defendant filed his written statement in O.S.No.315 of 1986 on 21.7.1987 and subsequently, he died on 6.7.1994. After getting themselves impleaded, the appellants herein filed their written statement on 23.4.1996.
8. A perusal of Ex.A1 disclose that while entering into the said agreement for sale, the first defendant herein, made it clear that the suit schedule property was self acquired property which he agreed to sell for the sale consideration of Rs.40,000. Though a legal notice was issued at the instance of the first respondent on 21.5.1986, which was acknowledged by the first defendant on 26.5.1986, the first defendant for reasons best known to him, did not send any reply. Even in his written statement though the first defendant would claim that he had been restrained by Court orders from selling the property, no further details had been furnished to enable the first respondent herein to ascertain and find out as to what was the nature of the proceedings or order of Civil Court that would cause any impediment for the parties in getting the sale deed executed as per Ex.A1. In as much as the first defendant referred to Court proceedings in his written statement, it is clear that his action in remaining ex parte in the said suit was deliberate and that therefore he was fully aware of the nature of relief claimed in the suit. Nevertheless he did not furnish any details about the said suit in his written statement except making a bald statement. Having stated in Ex.A1 that the suit schedule property was the absolute property of the first defendant and in the absence of any other details or particulars mentioned in the written statement filed by him, there was no scope for the first respondent herein to find out as to what extent the stand of the first defendant that it was a joint family property was true.
9. The appellants herein in their written statement while referring to their claim based on the joint family status about the suit schedule property did not give any particulars as to how the said stand was supported. Though it was claimed that a partition suit was filed and decree was passed, no particulars relating to the suit number nor the date of decree, nor the nature of the decree was furnished by the appellants. The written statement on that aspect was as bald as it could be. Therefore the first respondent was kept at dark at every stage by the first defendant as well as, by the appellants herein with regard to the joint family status of the suit schedule property. It is also relevant to note that though the preliminary decree came to be passed on 11.8.1986, no final decree proceedings had been taken even as on this date. Therefore the decree dated 11.8.1986 obtained at the instance of the appellants herein has only remained as a paper decree.
10. In such circumstances, the question that remained to be considered was as to how far the findings of the trial. Court that the defendant failed to establish that the suit schedule property is a joint -family property and the acceptance of the same by the first appellate Court is justified.
11. As far as the competence of the Courts below in analyzing the said question as to whether the suit schedule property was a joint family property is concerned, there could be no dispute that such a question could be validly gone into by the Courts below. In other words, the existence of the preliminary decree dated 11.6.1986 in O.S.No.306 of 1986 could not stand in the way of the Courts below in dealing with the question as to the nature of the suit schedule property whether it was a joint family property or the self-acquired property of the first defendant. In fact the very first issue framed in the suit was to find out as to whether the suit schedule property was a joint family property as claimed by the defendants. In those circumstances, when an issue was framed as to whether the suit schedule property was a joint family property, the appellants had every opportunity to put forth their contentions with relevant materials to show that it was a joint family property. In fact, the appellants filed Exs.B1 to B3. Ex.B1 is the preliminary decree dated 11.8.1986 made in O.S.No.306 of 1986. Ex.B2 is the bank pass book which came into existence in the year 1971, disclosed that in the said account, standing in the name of the first defendant, certain amounts had been deposited. Ex.B3 is another Post Office pass book standing in the name of the first appellant. Ex.A2 is the document dated 5.10.1971 which is the sale deed executed by one Muthu Veeran in favour of the first defendant and Ex,A3 which is also dated 5.10.1971 is yet another sale deed executed in favour of the first defendant by one Mahamoni Muthu Veeran. Exs.A4 and A5 dated 17.2.1971 are the documents executed by Muthu Veeran and Mahamoni in favour of the first defendant by way of mortgage deeds. It is also on record that Exs.A2 to A5 were left in the hands of the first respondent herein by the first defendant pursuant to the sale agreement dated 14.3.1986 under Ex.A1.
12. To contend that the suit schedule property was a joint family property, apart from Exs.B1 to B3, only other evidence was the oral evidence of the first appellant herein- The first appellant by relying upon Exs.B2 and B3 deposed before the Court below that his father first defendant was a man without means, that it was at the instance of the first appellant, funds were provided as disclosed in Exs.B2 and B3 in the respective bank accounts for the purchase of the suit schedule property under Ex.A2 and A3, that though he would claim that he borrowed a sum of Rs. 1,000 by way of hand loan which was repaid by him by disposing off his ring, it was admitted by him that there were no document in support of the borrowings said to have been made, that even after the decree in O.S.No.306 of 1986 under Ex.B1 they were living together, that they did not take any steps for final decree proceedings. It is significant to note that apart from the interested version of D.W.1, there was no other independent acceptable material evidence to show that the suit schedule property was purchased from and out of the joint family nucleus.
13. Merely going by the ipsi dixit oral version of D.W.1 and without any other supporting material,, it is quite unsafe to hold that the suit schedule property was joint family property. When on the face of it, it was shown that Ex.B1 was brought, into existence at the instance of the appellants herein with a view to stultify the claim of the first respondent, the Courts below rightly declined to rely upon the same to reach the conclusion about the nature of the property as a joint family property as claimed by the appellants. The very fact that the said suit came to be filed at the time when Ex.A1 came into being and Ex.A6 came to be issued at the instance of the first respondent, was sufficient to demonstrate that the whole purpose and intent of the appellants was to set at naught any legal proceedings that may be launched by the first respondent herein for the enforcement of his right under Ex.A1. It became more evident when the first defendant remained ex parte and thereby allowed the Court to pass a preliminary decree and also the subsequent conduct of the appellants as well as the first defendant in remaining silent without taking any further course of action by taking final decree proceedings in O.S.No.306 of 1986 strengthened the position that the whole proceedings were initiated for the purpose of creating a make a belief affair to veto any relief that may be claimed in the proposed action of the first respondent herein pursuant to the Issuance of Ex.A6. The admission of D.W.1 to the effect that on the date when he gave evidence in Court he continued to live in a joint family would show that there was absolutely no cause of action for the appellants herein to move the suit in O.S.No.306 of 86 except for the purpose of creating a pseudo legal impediment for the first respondent to pursue his remedy by way of the present suit. It is also significant to note that neither the appellants nor the first defendant were prepared to come out openly even after obtaining the decree under Ex-B1 to disclose about the details of it in their written statement, apparently with a view to keep the first respondent in dark and thereby prevent him from taking any steps to demonstrate before the Court about the futile exercise of the appellants in their attempt to thwart the claim of the first respondent. If the appellants were bona fide in their claim that the suit schedule property was a joint family property, nothing prevented them from joining the first respondent in the said suit and staked their claims by asking for a joint trial of both the suits.
14. Therefore every other attendant circumstance and the evidence on record disclosed that the suit schedule property was not a joint family property as disclosed by the appellants. The appellants miserably failed to establish de hors Ex.B1 that the suit schedule property was a joint family property. The Courts below therefore rightly reached the conclusion that Ex.A1 was validly entered into between first respondent and first defendant and that the appellants as legal heirs of the first defendant were bound to execute the sale deed in respect of the suit schedule property in favour of the first respondent herein. In view of the independent finding which was posed for consideration in the suit namely as to whether the suit schedule property was a joint family property, the said finding would clearly nullify the effect of the decree in O.S.No.306 of 1986.
15. It is also significant to note that after the passing of said preliminary decree dated 11.8.1986 till this date i.e. nearly after fourteen years, no steps had been taken for any final decree proceedings. Further fact that the existence of the preliminary decree dated 16.8.1986 was neither brought to the notice of the first respondent nor to the Court with specific particulars till Ex.B1 came to be filed in Court which was in the year 1997 i.e. after eleven years of the passing of the preliminary decree disclosed that their attempt was not bona fide. In this context, the reference to the judgment cited by the learned counsel for the first respondent can be usefully referred to. In the judgment reported in Ponnammal @ Guruvammal and others v. Kanthammal and others, , His Lordship Mr.Balakrishna Ayyar made a reference to the legal position that "a person who is not a party to the decree or a document, is not bound to sue for its cancellation". The learned Judge also referred to a decision of our High Court reported in ILR 1940 Mad. 73. Extracted portion of the said judgment disclose that when a person seeking 'to establish a title and finds himself threatened by a decree or a transaction between third parties is not in a position to get that decree or sale deed cancelled in toto. i.e.. a thing which can only be done by parties to the decree or deed, or their representatives. In such circumstances, by the very conduct, when the appellants have created a situation by resorting to some ingenious method with an eye on future legal remedy and thereby attempt to prevent a party from getting his legally enforceable right to be validly adjudicated upon, such vicious attempt cannot be permitted to be fructified. In otherwords, if the attempt of the Appellants are allowed to succeed, that would only result in the Court also meakly surrendering to such an ingenious approach by putting its seal of approval. Certainly, the Court cannot and will not be a party to such and one other, form of abuse of process of Court being adopted by such parties. Therefore, the appellants having failed to establish the primary issue in the suit, namely, that the suit schedule property is a joint family property, have rendered themselves ineligible to rely upon .Ex-B1 which was brought into existence at the instance of the appellants with some ulterior motive and which was also not binding on the first respondent herein. In such circumstances, the question of law posed for consideration has to be answered against the appellants.
In the result, the second appeal fails and the same is dismissed with costs. Consequently. C.M.P. is also dismissed.