S.A.(MD).No.95 of 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 22.04.2025 DELIVERED ON : 13.05.2025 CORAM THE HON'BLE MR.JUSTICE G.ILANGOVAN S.A.(MD).No.95 of 2006 1.Sulaiha Beevi (Died) (Memo dated 21.10.2024 presented before this Court on 24.10.2024 stating that the first appellant died. Memo is recorded. The 6th appellant who is already on record is recorded as LR of the deceased 1st appellant.) 2.Mymoon Beevi 3.Abdul Khader 4.Noorjahan 5.Shahul Hameed 6.Jaithoon Beevi ... Appellants/Respondents 2 to 7/Plaintiffs Vs. 1.Visalakshi ... Respondent/Appellant/6th Defendant. 2.Shenbagavalli 3.Rangesh 4.Jayalakshmi 5.Sudha ... Respondents/Respondents 8 to 12/ Defendants 2 to 5 PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree dated 02.09.2005 rendered in A.S.No.94 of 2003 on the file of the Subordinate Judge, 1/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 Sivagangai, reversing the decree and the Judgment dated 10.04.2002 rendered in O.S.No.84 of 1995 on the file of the District Munsif of Tiruppattur. For Appellants : Mr.P.Yasmin Begum For Respondents : Mr.S.Raja Sekaran for R1 (No Appearance) No Appearance for R2 to R5 Advocate Commissioner: Mr.G.Manikandan JUDGMENT This appeal has been filed against the Judgment and Decree dated 02.09.2005 rendered in A.S.No.94 of 2003 on the file of the Subordinate Judge, Sivagangai, reversing the decree and the Judgment dated 10.04.2002 rendered in O.S.No.84 of 1995 on the file of the District Munsif of Tiruppattur. 2.The averments in the plaint: The suit property belongs to the first defendant. He approached the plaintiff for selling the property. There was mutual agreement between the parties to purchase the property for Rs.12,000/-. Agreement was entered on 22.11.1989. On the same day itself Rs.4,000/- was paid as advance. The first defendant agreed to execute the sale deed in favour of 2/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 the first plaintiff within a period of 4 months from the date of agreement after receiving the balance amount. Later the first defendant received another some of Rs.1,000/- on 25.01.1990. The first plaintiff was always ready and willing to perform his part of contract. In spite of repeated demand the first defendant did not come forward to execute the sale deed. So the first plaintiff issued a notice dated 06.03.1990 demanding execution of sale deed. 3.The first defendant received the notice. But, there was no reply. So the suit is laid for specific performance of contract. During the pendency of the suit, it was learnt that the property was sold to the 6th defendant by the defendants 1 to 5. The 6th defendant is arrayed as a party. Plaint was amended. 4.The brief averments of the written statement filed by the third defendant: The agreement dated 22.11.1989 is denied as false. The first defendant is now dead. The suit properties are the ancestral property of the defendant. So all the legal heirs of the deceased first respondents are 3/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 having share in the property. The first plaintiff approached the deceased first defendant for constructing shops for renting out. That was the reason for the sale agreement. Moreover the property situated in Mela Radha Veethi, Sowmiya Narayana Perumal Kovil. Later it was came to know that the first plaintiff, against the agreement intended to construct mosque. So the first defendant cancelled the agreement. Apart from that it was agreed that time must be treated as essence of the contract. 5.To the knowledge of the first plaintiff the property was sold to 6th defendant for valid consideration. She put up construction in the property for residence. At that time the plaintiff did not make any objections. The suit itself is barred by limitation. 6.The statement of the 6th defendant is that only after receiving the summons from the Court the 6th defendant came to know that suit is filed in respect of the suit property. The possession of the 6th defendant is known to the plaintiff. The plaintiff did not make any objections. To harass the 6th defendant the suit is filed. To harass the 6th defendant the present suit is filed. The 6th defendant purchased the property on 4/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 21.05.1990 from one Rajagopalan for valid consideration. At the time of purchase she made thorough enquiry with regard to the title of the property. Now after purchasing the same she constructed the house. Revenue records are mutated in her name. Later the property was rented out to the third parties. 7.On the basis of the pleadings, the trial Court formulated the following issues. 1. Whether the plaintiff is entitled for the relief as claimed in the plaint? 2. To what other relief the plaintiff is entitled to? Additional Issues on 26.02.2001: 1. Whether the fact that the agreement entered between the 1st plaintiff and the 3rd defendant is cancelled due to the violation of the 1st plaintiff against the agreement is correct or not? 2. Whether the suit property was sold to third party during the life time of the 1st plaintiff? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether the suit is barred by limitation? 5/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 5. Whether there is any cause of action to this suit? Additional issue on 03.01.2002: 1. Whether the suit property was sold to the 6th defendant during the life time of the father of the 3rd defendant and in her possession is true? 8.On the side of the plaintiffs two witnesses were examined and 3 documents were marked. On the side of the defendants two witnesses were examined and 12 documents were marked. 9.At the conclusion of the trial process the suit was decreed as prayed for with costs. Against which, A.S.No.94 of 2003 was preferred before the Sub Court, Sivagangai. The appellate Court by the Judgment and decree dated 02.09.2005 allowed the appeal dismissing the suit filed by the appellant. Against which this second appeal is preferred. 10.At the time of admission the following substantial question of laws were framed. 1. When the defendants themselves have not challenged the 6/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 pleadings and the evidence that the purchaser was always ready and willing to act under the agreement of sale, is it still open to the Court to examine the question of readiness and willingness? 2. When the defendants took a plea regarding an alleged act of the purchaser leading for a cancellation of the agreement by the vendor unilaterally, is not the plaintiff entitled to take a decree of specific performance, when this issue had not been established by the contesting defendant? 3. When there is no plea or any issue regarding the binding nature of the agreement of sale upon the son of the vendor, can the Court examine such a stand and dismiss the suit on this ground also? 11.Substantial Question of Law No.3: This can be taken up for consideration first. 12.The sale agreement dated 22.09.1989 under Ex.A1 is not denied and disputed by the parties. As mentioned in the preamble portion of the judgment, the first defendant was dead, even at the time of suit. So his legal heirs were impleaded as defendants 2 to 5. The 6th defendant 7/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 is the subsequent purchaser pending the suit. The third defendant alone filed the written statement admitting the sale agreement. But, would say that only for the purpose of constructing shop for renting out, the agreement was entered between the first plaintiff and the deceased first defendant. 13.Now we will go to the notice issued by the first plaintiff to the deceased first defendant Rajagopalan. It is dated 06.03.2010, wherein, it has been stated that the agreement was entered between the parties for sale and the plaintiff is ready and willing to pay the balance amount and get the sale deed executed. In spite of repeated demands the deceased first defendant is not coming forward to execute the sale deed. There is no reply from the deceased first defendant to the notice. So this Court is not in position to find reason for the first defendant to delay the execution of the sale deed. 14.Now we will go to the recitals in the sale agreement. It is stated in the agreement that the deceased first defendant will receive Rs. 12,000/-for his family expenses from the first plaintiff who was acting on 8/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 behalf of Jamath, Thikoshtiyur. The advance amount was Rs.4,000/-. Remaining balance amount was Rs.8,000/-. Within four months the first plaintiff must pay the balance amount and in turn the first defendant must execute the sale deed. These are the recital in the agreement. 15.Now it is stated by the third defendant in the written statement that the agreement was entered only for the purpose of constructing shops for lease purpose. 16.But that is not the recital in the Ex.A1. It is also clear that the first plaintiff was acting on behalf of the Jamath and the agreement was entered only for the benefit of the Jamath to the Office Bearers. So now it is too late for the third defendant to contend that against the agreed purpose, the first plaintiff took steps to construct mosque in the property and that was the reason for the cancellation of the sale agreement by the deceased first defendant. 17.Absolutely, there is no evidence on record to show the defendant cancelled the agreement. When Jamath entered into the sale 9/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 agreement, it can be easily inferred that only for the Jamath purpose the agreement was entered for purchasing the property. Moreover, it is up to the purchaser to make use of the property to his advantage and it is not for the seller to impose any condition upon the purchaser. How this plea was taken by the this defendant is not known. After filing the written statement, the third defendant contested the matter. Now we will go to the findings of the trial Court. The first additional issue was framed with reference to this point. 18.Paragraph 13 is devoted to this issue found that absolutely there is no condition in the agreement and more over there is no condition between the parties regarding the purpose or user of the property under agreement. There is no evidence to show that there was violation by the first plaintiff. 19.Now we will go to the finding of the appellate court. The appellate court did not consider whether there was any breach of independent oral agreement regarding the user by the first plaintiff. But it found that whether suit is laid by the plaintiff on behalf of the Jamath or 10/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 in the individual name of the plaintiff or the plaintiffs were representing the Jamath is not explained. So in the absence of the necessary party namely Jamath the suit itself is bad under law. 20.Now we will go to that point. PW1 is the fourth plaintiff. The deceased first plaintiff is his father. He would say that the agreement was entered between his father and first defendant on 22.11.1989; His father was ready and willing to get the sale deed executed within the time. But the deceased first defendant was evading. During cross examination he would say that for the benefit of Jamath only the suit was filed and in the capacity of the Office President, he has filed the suit. He denied the suggestion that on behalf of the Jamath only the agreement was entered. But, the suit was filed in his personal capacity. We find quite contrary fact spoken by PW1 during the cross of evidence. During the cross examination he would say that being the President he is entitled to maintain the suit. 21.But no documentary evidence was produced by the plaintiff to show any authorization from the Jamath or to show that he is the Office 11/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 bearer of the Jamath or the vice president of the Jamath committee. 22.Even in the plaint there is no indication that the suit is filed for and on behalf of the Thirukoshtiyur Jamath, where in the plaint it has been stated that the agreement was entered for the benefit of Jamath. So the plaint lacks the basic averments with regard to the important issue. 23.Even during the course of argument before this Court no document was produced by the plaintiff in this regard. The appellate Court without going into other aspects set aside the Judgment and decree of the trial Court, solely on this point. 24.So I am of the considered view that this point requires proper consideration. So the plaintiff is directed to produce document from the concerned Jamath regarding the authorisation. The matter can be remitted back to the trial Court by granting liberty to the appellant herein to amend the plaint properly and lead further evidence in this regard. 12/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 25.The matter is remitted back with liberty. Let the entire trial process be completed within a period of 6 months considering the oldness of the matter. The trial court further is directed to send fresh notice to the contesting 6th defendant as well as third defendant who appeared before the trial Court as well as the appellate court. The trial Court may permit the parties to lead further documentary and oral evidence. The judgment and decree of the appellate Court as well as the trial Court are set aside. Second appeal is disposed of accordingly. No costs. 13.05.2025 Index : Yes / No Internet : Yes / No TM To 1.The District Munsif, Thirupattur. 2.The Subordinate Judge, Sivagangai. 3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai. 13/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.95 of 2006 G.ILANGOVAN ,J. TM S.A.(MD).No.95 of 2006 13.05.2025 14/14 https://www.mhc.tn.gov.in/judis