Madras High Court
Perumal Gounder (Died) ... vs Nallammal (Died) ... on 14 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA No.191 of 1999
1.Perumal Gounder (died) ...Defendant/Respondent/
Appellant
2.Sampoornam
3.Baskaran
4.Sundaram ... Appellants
(Appellants 2 to 4 are
brought on record as LRs of the deceased
sole appellant vide order dated
02.04.2004 made in CMP No.5282 of 2004)
Vs.
1.Nallammal (died) ...Plaintiff/Appellant/Respondent
2.Chinnappan (died)
3.Gunasekaran
4.Padmavathi ...Respondents
(R2 to R4 are brought on record as
LRs of the deceased sole respondent
vide order dated 10.11.2017)
(Memo USR 6034 of 2018 recorded
as R2 died. R3 & R4 are the LRs
of the deceased R2 and they were
already brought on record)
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1/7
5.P.Paneer Selvam (died)
6.M.Kuzhanthaivel ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 30.07.1998 made in A.S
No.210 of 1996 on the file of the II Additional District Judge, Trichy,
reversing the judgment and decree dated 08.10.1996 made in O.S No.
131 of 1994 on the file of the Subordinate Judge, Karur.
For Appellants : Mr.R.Vijayakumar
for P.Athimoolapandian
For Respondents : Ms.N.Krishnaveni, Senior Counsel
for Mr.P.Thiagarajan for R3&R4
Mr.G.Prabhu Rajadurai for R6
R1, R2 & R% died.
JUDGEMENT
This second appeal arises out of a suit for specific performance.
One Nallammal filed the said suit for enforcing the sale agreement
dated 27.08.1993 executed by one Perumal Gounder in her favour.
There is no dispute that the sale consideration was fixed at the rate of
Rs.1775/-per cent. The agreement contemplated sale of 1 acre and
53 ½ cents. The grievance of the plaintiff was that even though a
substantial portion of the sale consideration was paid (Rs.1,50,000/-)
and only a sum of Rs.1.00 lakh remained to be paid, the defendant did
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not come forward to execute the sale deed. Pre-suit notice dated
09.03.1994 was issued. The same was received by the defendant.
But then, the defendant did not issue any reply notice. Hence, the
suit came to be filed for the aforesaid relief. Periya Gounder filed his
written statement controverting the plaint averments. On behalf of
the plaintiff, her husband Chinnappan examined as PW.1 and Exs.
A1 to A3 were marked. The defendant examined himself as DW.1.
No documentary evidence was adduced on his side. After
considering the evidence on record, the trial court vide judgment and
decree dated 08.10.1996 dismissed the suit but directed the
defendant to return the advance amount of Rs.1.50 lakhs with interest
@ 15% per annum. Aggrieved by the same, the plaintiff filed A.S No.
210 of 1996 before the II Additional District Judge, Trichirappalli. The
first appellate court by the impugned judgment and decree dated
30.07.1998 allowed the appeal and decreed the suit. Questioning the
same, this second appeal came to be filed. The second appeal was
admitted after framing the following substantial questions of law :
“1.Whether the time is not the essence of contract
when the respondent/plaintiff/agreement holder has not
even moved her little finger to perform her part of
contract before the expiry of the sale agreement and in
such circumstances whether the respondent is entitled
to the equitable remedy ?
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2.Whether the pleadings contradictory to the terms
of the sale agreement which is subsequently neither
changed nor altered will prevail over the express terms of
agreement ? and
3.Whether the respondent is entitled to the
equitable relief of specific performance who has not
performed her part of contract by paying the entire
consideration and comes to the court with false case ?”
2.During the pendency of this appeal, the appellant as well as
the respondent Nallammal passed away. Their respective legal heirs
were brought on record. When the matter was taken up for hearing
on the previous occasion, it came to be known that Periya Gounder
during his life time had sold the property in two parcels in favor of one
Paneer Selvam and one Kuzhanthaivel. Therefore, it was directed that
they could also be impleaded as parties. They were accordingly
impleaded as parties vide order dated 10.06.2021. Before the next
hearing, during the intervening period, Paneer Selvam also passed
away. When the matter was taken up for final hearing, I suggested
that the issue can be amicably resolved. It was submitted that there
there was an acquisition of almost 50 cents of land for road purpose.
According to the learned counsel for the appellant, only about 100
cents of land are presently available on ground. Be that as it may, I
suggested that a sale deed can be executed in favour of the legal heirs
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of the plaintiff for 50% of whatever is available on ground. The matter
was adjourned on more than one occasion to enable the learned
Senior counsel for the plaintiff to get instruction. In fact, some of the
parties were also present along with the respective counsel through
video conference. I am happy to record that the suggestion put forth
by the court has been accepted by both the parties. Accordingly, this
second appeal is disposed of in the following terms :
(i).The judgment and decree of the first appellate
court is set aside.
(ii).The learned Sub Judge, Karur is directed to
appoint an Advocate Commissioner for measuring the
suit property and file a report and sketch before the trial
court to show the portion that has been acquired and
what is presently available on ground. The Advocate
Commissioner is permitted to take the assistance of the
local town surveyor.
(iii).The trial court itself is directed to execute a sale
deed in respect of 50% of what is available on ground in
favour of the legal heirs of the plaintiff Nallammal.
No costs.
14.07.2021
Index : Yes / No
Internet : Yes/ No
skm
https://www.mhc.tn.gov.in/judis/
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the
correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. I Additional Subordinate Judge, Madurai.
2. I Additional District Judge, Madurai
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
skm
SA No.191 of 1999
14.07.2021
https://www.mhc.tn.gov.in/judis/
