Madras High Court
S.Varadarajan (Died) vs K.Srinivasa Rao (Died) on 5 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 05.09.2018 RESERVED ON : 27.08.2018 PRONOUNCED ON : 05.09.2018 CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN Appeal Suit No.751 of 1995 and Cross Objection No.110 of 1996 Appeal Suit No.751 of 1995:- 1.S.Varadarajan (Died) 2.S.Nagarjan 3.S.Kamalam (Died) 4.V.Rajalakshmi 5.V.Venkataramaraju 6.V.Prasanna 7.Jayalakshmi 8.S.Sethuvijaya ... Appellants Vs 1.K.Srinivasa Rao (Died) 2.S.Raman (Died) 3.Jothi Manickam 4.Devi 5.Sasi ... Respondents (A4 to A6 were brought on record as legal representatives of the deceased 1st appellant as per order dated 14.01.2003, made in CMP Nos.19168 to 19170 of 2000) (A7 and A8 were brought on record as legal representatives of the deceased 3rd appellant as per order dated 16.06.2017 made in CMP(MD)No.5129 of 2017) (R4 and R5 were brought on record as legal representatives of the deceased 2nd respondent as per order dated 26.04.2017 in MP(MD)No.4 to 6 of 2013) Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure, to set aside the judgment and decree dated 16.12.1991 made in O.S.No.127 of 1990 on the file of the Principal Subordinate Court, Tirunelveli. Cross Objection No.110 of 1996:- Jothimanickam ... Cross Objector / 3rd Respondent Vs 1.K.Srinivasa Rao 2.S.Raman 3.S.Kamalam 4.S.Varadarajan 5.S.Nagarajan ... Respondents Prayer: Cross Objection filed under Order 41 Rule 22 of Code of the Code of Civil Procedure, against A.S.No.751 of 1995 and the order dated 16.12.1991 made in O.S.No.127 of 1990 on the file of the Principal Subordinate Court, Tirunelveli. !For Appellants : Mr.P.Thiyagarajan ^For R1 and R2 : Died For R3 : Mr.S.Balasubramanian for Mr.A.Arumugam For R4 and R5 : No appearance :JUDGMENT
The second and third plaintiffs in O.S.No.127 of 1990 on the file of the Principal Subordinate Court, Tirunelveli, have been filed the present appeal suit, challenging the judgment and decree dated 16.12.1991.
2.Simultaneously, the 3rd defendant had filed cross objection in Crs.Obj.No.110 of 1991, also being aggrieved by the judgment and decree.
3.O.S.No.127 of 1990 had been filed by three plaintiffs, K.Subbarao, S.Varadarajan and S.Nagarajan against three defendants, K.Srinivasa Rao, S.Raman and Jothi Manickam. The first plaintiff, K.Subbarao was the father of the second and third plaintiffs, S.Varadarajan and S.Nagarajan. The first defendant, was the brother of the first plaintiff and also the father of the second defendant. The third defendant, Jothi Manickam, was a third party purchaser of the suit property.
4.The suit property was originally owned by Krishnamachariar, father of the first plaintiff and first defendant. He died intestate. After his death, the first plaintiff and the first defendant thought it fit to partition the joint family property and they had executed a registered partition deed on 12.10.1987. The adult sons, namely, the 2nd and 3rd plaintiffs and the 2nd defendant were also involved in the partition deed. In the partition deed, the first schedule property was allotted to the plaintiffs and the second schedule property was allotted to the 1st and 2nd defendants. The third schedule property, which was a pathway, was kept as a common property. The plaint schedule property is the western half of D.No.105. The entire D.No.105 is a small building with tiled roofing with north-south wall dividing the property. There was a right of preemption afforded in the partition deed to the other party, if one of them decided to sell their share.
5.In the plaint, it had been stated that the first defendant had been getting into debts and in October-November, 1989, the first and second defendants expressed their intention to sell their share. They sought the consent of the plaintiffs. It was further stated that on 20.11.1989, it was agreed at Tirunelveli between the plaintiffs and the 1st and 2nd defendants that the plaint schedule property could be conveyed by the first and second defendants for a sum of Rs.52,000/-. The terms were to be reduced in writing within a week. However, the first and second defendants sold the property to the third defendant for a consideration of Rs.52,000/-. The plaintiffs claimed in the plaint that the sale is invalid and void, since the consent of the plaintiffs was not obtained.
6.It was further stated that the third defendant, who is a stranger, had purchased the property knowing fully well about the terms of the partition deed. The first and second defendants did not obtain consent in writing from the plaintiffs. The allegation, that they had granted oral consent, was specifically denied. Immediately, after knowing about the proposal for alienation, the plaintiffs sent a legal notice, dated 10.12.1989. This was not replied by the first and second defendants. On 09.02.1990, the plaintiffs again issued notice to the defendants. This was answered by the third defendant on 12.03.1990. A rejoinder notice, dated 02.05.1990 was issued. The plaintiffs claimed that they have right in law to specifically enforce their right for preemption. They stated that they are also willing to purchase the property for a sum of Rs.52,000/-. It is under these circumstances, the plaintiffs had filed the suit seeking the following reliefs:
?1)for specific performance of the contract of sale agreement between the parties on 28.11.1989 and also to enforce the right of preemption by directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiffs in respect of the plaint schedule property after receiving the consideration of Rs.52,000/-, within the time to be fixed by this Honourable Court; failing which the Honourable Court be pleased to execute the sale deed in favour of the plaintiffs;
2)directing the defendants to pay the costs of this suit to the plaintiffs; and
3)for such other reliefs as this Honourable Court may deem fit and proper in the circumstances of this case and thus render justice.?
7.In the plaint, Xerox copy of the partition deed, dated 12.10.1987 was filed, along with the copies of notices exchanged with between the parties.
8.The first and second defendants filed their written statement. They stated that they have sold their property to third defendant, A.Jothi Manickam for a consideration of Rs.52,000/- by a registered sale deed. In the partition deed executed between the plaintiffs and the first and second defendant, it was stated that, if there was necessity to alienate the share in the property, consent must be obtained. It was specifically stated that the first and second defendants had obtained consent from the plaintiffs directly and also through letters. It was also stated that the third defendant had purchased only with knowledge of the terms of the partition deed. It had been stated that the plaintiffs have no right to seek specific performance or seek enforcement of right of preemption. It had been stated that the suit should be dismissed.
9.The third defendant also filed his written statement. In the written statement, it had been specifically stated that the plaintiffs were not entitled to either the relief of specific performance or the relief of preemption. It had been stated that the suit had been filed with an intention to cause harassment to this defendants.
10.It had been further stated that the third defendant had purchased the property from the first and second defendants by a registered sale deed, dated 06.12.1989. The total sale consideration was Rs.52,000/-. Out of the total sale consideration, a sum of Rs.11,000/- was paid to P.Ramani Iyyar, to adjust the advance paid for his tenancy. The third defendant had obtained receipt, from the said P.Ramani Iyyar. It had been stated that the first and second defendants had mortgaged the property on 03.02.1989 for a sum of Rs.10,000/-, that was also discharged by the third defendant on 06.12.1989. He also obtained a receipt for the said discharge. The first and second defendants had also entered into an agreement of sale with one A.Somasundaram on 30.04.1989 and had received an advance of Rs.15,000/-. The third defendant had repaid the said advance amount of Rs.15,000/- to the said A.Somasundaram and had obtained a receipt for the same. The first and second defendants had received an advance of Rs.10,000/- from the third defendant. Before the Sub- Registrar, the balance sale consideration of Rs.6,000/- was paid and it was also noted in the sale deed.
11.The third defendant further stated that the notice dated 09.02.1990 was alone received by him. He had replied on 12.03.1990. He denied the receipt of rejoinder notice, dated 02.05.1990. It was stated that the third defendant had not acted in violation of any of the clauses of the partition deed between the plaintiffs and the first and second defendants. It had been further stated that the plaintiffs and the first and second defendants have joined in collusion and had filed the suit. It had been stated that the Court fees had been paid only for the relief of specific performance. In the same prayer, an additional relief of preemption was sought, but Court fees has not been paid for the same. It had been stated that the suit should be dismissed.
12.On the basis of pleadings, the learned Subordinate Judge, Tirunelveli, had framed the following issues:
?1)Whether the plaintiffs are entitled to the reliefs of specific performance?
2)Whether the plaintiffs are entitled to the relief of preemption?
3)Whether the first and second defendants had executed the sale deed in favour of the third defendant without the consent of the plaintiffs?
4)Whether the plaintiffs had the mesne to purchase the suti property?
5)Whether the agreement of sale entered into between the first and defendants with A.Somasundaram was executed without the consent of the plaintiffs?
6)Whether the plaintiffs had paid necessary Court fee for the suit?
7)Whether the third defendant is a bona fide purchaser for adequate consideration?
8)Whether the plaintiffs are liable to pay damages to the third defendant?
9)To what other reliefs, the parties are entitled to??
13.An Additional issue was also framed, which as follows:
?Whether Ex-A5 is admissible evidence and whether it could be marked through DW-1?
14.During the trial, the second plaintiff was examined as PW-1. An independent witness, Murugan was examined as PW-2. The plaintiffs marked Ex- A1 to Ex-A5. Ex-A5 was the partition deed entered into between the plaintiffs and the first and second defendants. It must be noted that only a Xerox copy was marked. On the side of the defendants, the third defendant was examined as DW-1. He marked Ex-B1 to Ex-B6. The registered sale deed in his favour dated 06.12.1989 was marked as Ex-B1 and the receipts for discharging of mortgage to Mariappan, for return of advance amount to Ramani Iayyar and for return of advance to A.Somasundaram, were marked as Ex-B3, Ex-B5 and Ex-B6, respectively.
15.The learned Subordinate Judge, on appreciation of oral and documentary evidence, first examined the additional issue, which was with respect to the admissibility of Ex-A5. Ex-A5, was a Xerox copy of the partition deed between the plaintiffs and the 1st and 2nd defendants, dated 24.07.1946. This was marked during the cross examination of DW-1. The registered copy of the partition deed was not produced by the plaintiffs. This document was also referred clauses in the sale deed, Ex-B1, which was executed by the first and second defendants in favour of the third defendant. The learned Subordinate Judge, held that since DW-1, namely, the third defendant had admitted Ex-A5, it was admissible in evidence, even though it was a Xerox copy. It was also revealed during evidence that the original of Ex-A5, had been deposited with a Co-operative Bank for obtaining loan. But no explanation was given why a certified copy was not produced.
16.The learned Subordinate Judge also took up the issue No.7, which was whether the third defendant was a bona fide purchaser for adequate consideration. The learned Subordinate Judge held that the third defendant was not a bona fide purchaser.
17.The learned Subordinate Judge finally took issues No.1, 2 and 3 together. He held that the plaintiffs were entitled to the relief of preemption in accordance with the covenant in Ex-A5, partition deed. However, he held that since there was no agreement of sale between the plaintiffs and the 1st and 2nd defendants and the plaintiffs were not entitled to the relief of specific performance. It was also held that the first and second defendants had sold the property, without obtaining consent from the plaintiff, to the third defendant. He held that the plaintiffs were entitled to only to the right of preemption, but not to the relief of specific performance.
18.As against the said findings, the plaintiffs had filed A.S.No.751 of 1995 challenging the denial of the relief of specific performance and the third defendant had filed Cro.Obj.No.110 of 1996 challenging the findings that the plaintiffs were entitled to the right of preemption.
19.After the judgment and decree had been pronounced, the first plaintiff, K.Subbarao, died. Consequently, his widow, S.Kamalam was impleaded as third appellant. During the pendency of the appeal, the first appellant, S.Varadarajan, also died and his legal representative were brought on record appellants 4, 5 and 6. The third appellant, S.Kamalam, also died and the appellants 7 and 8 were brought on record as her legal representatives. The second respondent, S.Raman, who was the second defendant in the suit, also died pending the appeal and his legal representative were brought on record as 4th and 5th respondents.
22.The points to be considered in the first appeal are as follows:
?1)Whether the plaintiffs are entitled to the reliefs of specific performance and the relief of enforcement of right to preemption?
2)Whether the trial Court was right in granting the relief of preemption and negativing the relief of specific performance, though a joint prayer was sought in the plaint?
3)Whether consent had been obtained from the plaintiffs before the property was conveyed to the third defendant?
4)Whether the third defendant was a bona fide purchaser for adequate consideration?
5)Whether the judgment and decree of the trial Court requires interference?
23.Heard arguments advanced by Mr.P.Thiyagarajan, learned Counsel for the appellants and Mr.S.Balasubramanian for Mr.A.Arumugam, learned Counsel for the third respondent. There was no appearance on behalf of the other respondents.
24.The parties shall be referred to as plaintiffs and defendants. Even before the filing of the appeal and after the judgment and decree was passed, the first plaintiff died. His legal heir had been brought on record. At any rate, it is to be noted that the appellants represent the plaintiffs. During the pendency of the appeal, the second defendant also died and his legal heirs had been brought on record. The respondents represent the defendants and more importantly, the third respondent, a purchaser, was the third defendant. Consequently, referring the parties as plaintiffs and defendants would provide clarity during the discussion hereunder.
25.The property, at D.No.105, T.S.No.192, Ward No.1 and Block No.20, Melaveeraragavapuram Perumal Kovil, East Car Street, Tirunelveli, originally belonged to Krishnamachariar, father of the first plaintiff and the first defendant. He died intestate. Therefore, the first plaintiff and the first defendant decided to partition the property. In the partition deed, the second and third plaintiffs, who were the sons of the first plaintiff and the second defendant, who was the son of the first defendant, also joined as parties. This partition deed was marked as Ex-A5, dated 26.07.1946. It is a Xerox copy. It was marked during the cross examination of DW-1. DW-1 was the third defendant, Jothi Manickam. He had purchased the share, which fell to the 1st and 2nd defendants in the partition deed. That sale was challenged by the plaintiffs in the suit.
26.The plaintiffs claimed they have a right of preemption. They also claimed that they had an oral agreement with the first and second defendants to purchase the said property and overlooking the said agreement, the first and second defendants had sold the property to the third defendant. Consequently, the plaintiffs had instituted the suit claiming the relief of specific performance of the oral agreement dated 28.11.1989 and also the relief to enforce the right of preemption. This right of preemption flows from the partition deed, Ex-A5. However, even though, the second plaintiff was examined as PW-1, he did not mark or produce or prove Ex-A5 in manner known to law.
27.The entire suit is based on two grounds. The first ground is that Ex-A5 gives right to seek preemption in case, one of the parties to Ex-A5, decide to sell their share. The second ground also flows from Ex-A5, wherein, it had been provided that consent must be obtained from the other party, before effecting such sale. In the instant case, it is the specific stand of the plaintiffs that there was an oral agreement of sale on 28.11.1989. They also claimed that pursuant to the agreement of sale, the defendants should convey the property to them. Independently, they also stated that they have an inherent right of preemption. Since, the suit revolves around the interpretation of the grant of such right, it was only expected that the plaintiffs should produce the partition deed and if the original is not available, atleast a certified copy of the same from the Registrar Officer should be produced. However, they have produced only a Xerox copy.
28.The third defendant, grazed the witness box as DW-1. He was shown the Xerox copy of the partition deed and as any honest witness, he affirmed that it was a partition deed executed to the plaintiffs and the first and second defendants. The document was marked as Ex-A5. Merely giving an exhibit number does not indicate that the document has been in accordance with law. The plaintiffs who based their case on the partition deed should have produced the document and should have explained the circumstances surrounding the clause relating to preemption on which clause they have based the suit. The plaintiffs must have explained to the Court what exactly the said clause was meant to convey.
29.In Ex-A5, the particular clause relating to preemption is as follows:
?ek;kpy; ve;j (ghh;l;b) ghf];juhtJ ghf nrhj;ij fpiuak; nra;a Ntz;ba mtrpak; Vw;gl;lhy; me;j ghh;l;b mg;NghJ jgrpy; nrhj;Jf;F ehd;F Ngh;fs; kjpf;ff; $ba epytuj;jpd; gb kw;w ghf];j ghh;l;bf;Nf fpiuak; nra;J nfhLf;f Ntz;baJ. kw;w ghh;l;bapd; rk;kjk; ngw;W NtW egUf;F fpiuak; nra;J nfhs;syhk;.?
30.A careful reading of the said clause reveals that if there is necessity to sell the share of anyone of the two parties, then for an adequate consideration, which had been approved, the sale must be effected to the other party. However, after obtaining consent, the share may be sold to a third party. The above clause requires detailed explanation, as to what are the requirements to term a adequate consideration, what are the factors for its approval, and what exactly the plaintiffs and the first and second defendants meant by the word 'consent'. Explanation is required to know whether the word 'consent' is plain, oral consent or specific consent given in writing. Moreover, the circumstances surrounding necessity to sell will also have to be explained. The plaintiffs must have clarified to the Court the circumstances, which can be classified as necessary circumstance to effect the sale. These are aspects, which the plaintiffs should have explained to the Court.
31.The witness for the plaintiffs did not even rely on the partition deed or on the specific clause, in his deposition. He spoke about a partition deed, dated 12.10.1987. He did not produce the document. He then spoke that consent must be obtained before sale is effected to a third party. His evidence were only statements, never substantiated by producing the actual document. The witness probably was too clever. He assumed that vague statements would be accepted by the Court. The partition deed was finally marked during the cross examination of DW-1. This practice has to be deprecated. The plaintiffs will have to prove their own case. They will have to stand or fall on the interpretation of the the covenants in the partition deed. PW-1, should have spoken about the reasons behind introducing the clause for either preemption or for obtaining consent before effecting sale. A mere statement in chief examination that there was an oral partition on 28.11.1989, would not suffice in a Court of law.
32.PW-2, is a Driver, under employment of the plaintiffs. His evidence was rejected by the Courts below. The evidence of PW-1 does not convey any material fact in the absence of not producing the vital document, which gave them the right for preemption. He never produced the document. He could not be cross examined on the document. During the cross examination of DW-1, the Xerox copy was produced. Explanation has not been given, as to why the original was not produced or atleast why the certified copy was not produced. I hold that Ex-A5 has not been proved in the manner known to law and in the absence of credible evidence to explain why the original has not been produced or a certified copy was not been produced. I hold that the xerox copy produced is inadmissible in evidence. Once, Ex-A5 is wiped out from the evidence, then the plaintiffs do not have any case at all. Their claim of oral agreement cannot stand scrutiny. It is a self serving statement. They should have proved their case by producing Ex-A5 and subjecting themselves for cross examination on the document. The plaintiffs also base their case on an alleged oral agreement. There is no evidence of any advance amount being paid on the date of the alleged oral agreement.
33.The third defendant had purchased the property and had discharged the debts of the first and second defendants. Exhibits have been produced to prove such discharge. Ex-B2, dated 03.02.1989, is a mortgage executed by the first and second defendants in favour of Mariappan for a sum of Rs.10,000/-. Ex-B3, dated 06.12.1989, is the discharge receipt of the said mortgage reflecting payment by the third defendant to Mariappan to a sum of Rs.10,000/-. It is seen that this discharge is on the very same date, as the sale deed in favour of the third defendant. The mortgage was subsisting on the date of sale. The third defendant discharged the said mortgage. The first and second defendants had also received an advance a sum of Rs.11,000/- from P.Ramanai Iyyar. The registered rental agreement between the first and second defendants with P.Ramani Iyyar had been produced by the third defendant as Ex-B4. It was dated 28.09.1987. The third defendant discharged the liability to return the advance amount. The receipt for the same was marked as Ex-B5. The first and second defendants had also entered into an earlier agreement of sale with A.Somasundaram. They had received an advance amount of Rs.15,000/-. This was also discharged by the third defendant, through Ex-B6, dated 06.12.1989.
34.It is, thus, seen that the first and second defendants had pressing reasons to sell the property. The third defendant had cleared all liabilities and encumbrances. I hold that the third defendant was a bona fide purchaser. He had discharged the debts of first and second defendants. He had then purchased the property from the first and second defendants. Ex-A5 is an inadmissible document and no findings can be given based on that document. It is rejected by me. The plaintiffs have not produced Ex-A5 during chief examination of PW-1. It is clear that they do not want to rely on it. Then they cannot expect the Court to give a decree based on that document. The plaintiffs will have to fall owing to their own deliberate tactics of not producing the certified copy of the partition deed, but producing a Xerox copy and making it through cross examination of DW-.1.
35.The trial Court had rejected the evidence of PW-2, Murugan, and had denied the relief of specific performance. I find no infirmity in the same. The trial Court had however granted the right of preemption based on inadmissible evidence in Ex-A5, which had not been proved in the manner known to law. The plaintiffs consequently also loose their right of preemption.
36.In ILR Vol-29-ALL-155, it had been held as follows:
?......The claim for specific performance is a claim in respect of the proprietary interest in the land. Whereas, under the claim for pre-emption the plaintiff respondent could only obtain such interest as the mortgagees of the defendant Hashmat-un-nissa possessed..... These two claims appear to us to be separate and distinct claims.?
37.The trial Court erred in granting the right of pre-emption which is a weak right. As a matter of fact, a careful reading of the plaint reveals that the suit was actually filed seeking specific performance of the oral agreement of sale said to be on 12.10.1987. The relief of pre-emption was only an added on relief. The frame of the reliefs sought itself shows that the plaintiffs were not certain of the foundation of their claims. Right to enforce the clause relating to preemption does not flow automatically. Alternative reliefs have been couched into one relief. Once Ex-A5 has been held to have not to be proved in manner known to law, the entire rights which flow from the document stand expunged.
38.I hold that the judgment and decree of the trial Court will have to be interfered with and the appeal has to be dismissed with costs.
39.Insofar as Crs.Obj.No.110 of 1996, is concerned, the legal representatives of the deceased respondents have not been impleaded, as has been done in the first appeal. Consequently, the Cross Objection has to suffer an order of dismissal on the ground of abatement.
40.Though, DW-1 admitted to the document, I hold it has not been proved in manner known to law. As stated above, the circumstance surrounding the clause for preemption have not been explained by PW-1, who had the burden to explain it. He had not stated whether consent should be in oral or in writing. He has not stated the circumstances, when sale to a third party can be made. He has not stated the manner in which the adequacy of consideration can be decided. He has not even produced Ex-A5, partition deed. Consequently, this Court has to necessarily interfere with the judgment and decree granted for preemption. I hold that the suit in entirety will have to be dismissed.
41.In the result, A.S.No.751 of 1995 is dismissed with costs. Cross Objection No.110 of 1996 is dismissed, however, without costs. O.S.No.127 of 1990 is dismissed with costs.
To
1.The Principal Subordinate Judge, Tirunelveli.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.