Madras High Court
Badrunisha Begam vs Raihana Begam on 8 April, 2022
A.S.(MD)No.181 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.04.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.181 of 2016
Badrunisha Begam ... Appellant/Plaintiff
Vs.
1.Raihana Begam
2.A.Raja Mohammed ... Respondents/Defendants
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against
the judgment and decree dated 23.06.2011 in O.S.No.31 of 2008 on the file of
the learned Additional District and Sessions Judge, Fast Track Court Judge,
Dindigul.
For Appellant : Mr.V.Raghavachari
For Respondents : Mr.V.Janaki Ramulu for R1
Mr.M.Mohaboob Athiff for R2
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A.S.(MD)No.181 of 2016
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of the
learned Additional District and Sessions Judge, Dindigul, dated 23.06.2011
made in O.S.No.31 of 2008.
2.The appellant is the plaintiff in O.S.No.31 of 2018; the plaintiff filed the suit
for the relief of specific performance on the basis of the sale agreement dated
01.12.2004.
3.The facts of the case runs as under:-
The plaintiff is the wife of one Mohammed Sulaiman; the first defendant is the
plaintiff's daughter; the first item of the suit property was purchased by the first
defendant and her sisters from one Jeyanthi Renies through his power agent
namely, Raja Renies by virtue of sale deed dated 15.03.1999; the second and
third items of the suit property also belonged to the first defendant and her
sisters; the father of the first defendant Mohamed Sulaiman was managing the
said properties; in the year 1993, the first defendant executed a power deed in
favour of her father; based on the power deed, Mohammed Sulaiman had
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A.S.(MD)No.181 of 2016
executed a sale agreement in respect of the undivided 1/4th share of the first
defendant in favour of the plaintiff on 01.12.2004 for a sale consideration of
Rs.9,00,001/- and he also received a sum of Rs.5,00,001/- as advance from the
plaintiff on the same day; the said sale agreement is a registered one; when the
sale agreement was in subsistence, the first respondent had executed a sale
agreement in favour of the second defendant on 07.12.2004; subsequently, he
also executed a sale deed on 16.11.2005 in favour of the second defendant in
respect of the first item of the suit property; the plaintiff came to know about
the above sale deed only after the demise of her husband/Mohammed Sulaiman;
the second defendant is not a bonafide purchaser for value and the sale deed
executed in his favour by the first defendant is not valid; since the first
defendant did not perform her part of contract as per the sale agreement dated
01.12.2004, the plaintiff has filed the suit for the relief of specific performance.
4.The first defendant resisted the suit by filing a written statement stating that
the first item of the suit property was not managed by her father; on 14.06.1993,
the first defendant and her sisters executed power deed in favour of their
father/Mohammed Sulaiman; but the said power deed was cancelled on
22.11.2004; it is false to state that on 01.12.2004, a sale agreement was
executed in favour of the plaintiff in respect of the first item of the suit
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A.S.(MD)No.181 of 2016
property; even if there is a sale agreement, that will not bind the first defendant;
the first defendant in order to meet her financial demands, had entered into a
sale agreement in favour of the second defendant in respect of her undivided
1/4th share in respect of the first item of the suit property on 07.12.2004; she had
also executed a sale deed on 16.12.2005 in favour of the second defendant; as
per the oral arrangement between the first defendant and her sisters, an extent
of 1 Acre and 84 ¾ Cents on the northern extreme of the first item of the suit
property was given to the share of the first defendant and that was subject
matter of the sale deed dated 16.12.2005; the father of the first defendant died
on 08.03.2007; subsequent to his death, there was misunderstanding between
the plaintiff and first defendant and her sisters in partitioning the properties
belonged to her father; due to such motivation, the suit has been filed by the
plaintiff and it should be dismissed.
5.The second defendant had filed written statement by stating that the second
defendant is not aware of any power deed executed by the first defendant in
favour of her father; he came to know that a power deed was executed by the
first defendant and her sisters in favour of their father/Mohammed Sulaiman
but that was cancelled on 22.11.2004 itself and the said fact was known to the
first defendant's father also; only because of that, Mohammedan Sulaiman did
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A.S.(MD)No.181 of 2016
not object or deny the sale agreement entered into between first defendant and
the second defendant; after the cancellation of the power deed, power of
attorney had got no right to enter into a sale agreement in respect or property
belonged to the first defendant; the second defendant is a lawful purchaser of
the first item of the suit property by virtue of the sale deed executed by the
lawful owner namely, the first defendant on 16.11.2005; in pursuance of the
said sale deed, he had taken possession of the first item of the suit property and
he is in enjoyment of the same; hence, there is no cause of action for the suit
and the suit should be dismissed.
6.Basing of the above pleadings, the learned trial Judge framed the following
issues:-
“1.v];.gp.KfkJ RiykhDf;F 1k; gpujpthjp 14.06.93 njjpapl;L
Vw;gLj;jpf; bfhLj;j Kfth; mjpfhu gj;jpuj;ij 22.11.2004y; 1k;
gpujpthjp uj;J bra;J tpl;ljhf brhy;tJ cz;ikah?
2.thjpf;F 1.12.2004 njjpapl;L> Vw;gl;Ls;s jhth fpiua xg;ge;jk; 1;k;
gpujpthjpia fl;Lg;gLj;jf;Toajh?
3.jhth fpiua xg;ge;jjpd; nghpy; fpiuak; Koj;Jf; bfhs;s thjp
vg;nghJk; tpUg;gkhft[k;> jauhfht[k; ,Ue;J te;jjhf TWtJ rhpah?
4.2k; gpujpthjp 1;k; gpujpthjpaplk; Vw;gLj;jpf; bfhz;l fpiua
xg;ge;jjpd;go bgw;Ws;s fpiua Mtzj;ij thjp Ml;nrgiz bra;a
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A.S.(MD)No.181 of 2016
mUfij cilatuh?
5.2k; gpujpthjp Kd;dwptpg;g[ vJkpy;yhky;> ey;byz;zj;jpd; nghpy;
(Bonafide Decree passed without notice) fpiuak; bgw;w egh; vd;gJ
rhpah?
6.tHf;Fiug;go thjp ghpfhuk; bgw chpik cilatuh?
7.thjpf;F vd;d ghpfhuk; fpilf;fj;jf;fJ?”
7.The records would show that the sisters of the first defendant had filed a suit
in O.S.No.32 of 2008 for partition against the defendants and the plaintiff in
O.S.No.31 of 2008; both the suits were tried jointly and common judgment was
delivered in both the suits.
8.During the course of trial evidence was let in O.S.No.32 of 2008. On the side
of the plaintiff, one witness was examined as P.W.1 and Exs.A1 to A5 were
marked. On the side of the defendants, six witnesses were examined as D.W.1
to D.W.6 respectively and Exs.B1 to B19 were marked. An Advocate
Commissioner was appointed and his report and plan were marked as Exs.C1
and C2. In view of the joint trial, the plaintiff in O.S.No.31 of 2008 was
examined as D.W.5 and the first defendant/Raihana Begam in O.S.No.31 of
2008 was examined D.W.2 and the second defendant/Raja Mohammed in
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A.S.(MD)No.181 of 2016
O.S.No.31 of 2008 was examined as D.W.3.
9.At the conclusion of the trial and on considering the evidence available on
record, the learned trial Judge had dismissed the suit in O.S.No.31 of 2008;
aggrieved over that, the plaintiff in that suit had filed this Appeal Suit.
10.Heard the learned counsel for the appellant and the learned counsel for the
respondents and went through the evidence on record.
11.The learned counsel for the appellant submitted that the sale deed in favour
of the plaintiff was executed by Mohammed Sulaiman in his capacity as power
of attorney for the first defendant on 01.12.2004; though it is claimed by the
first defendant that the power deed was cancelled on 22.11.2004, that was not
brought to the knowledge of the power of attorney; after the death of her power
of attorney, the first defendant has to execute the sale deed in favour of the
appellant as per the sale agreement dated 01.12.2004; the learned trial Judge
without appreciating the evidence in a proper perspective had dismissed the
suit; since the plaintiff has proved her readiness and willingness to executed her
part of contract, the learned trial Judge ought to have decreed the suit; hence,
the appeal should be allowed.
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A.S.(MD)No.181 of 2016
12.The learned counsel for the respondents submitted that the first defendant is
the owner of the undivided 1/4th share in respect of the first item of the suit
property and that cannot be denied by the appellant; as a lawful owner of the
said property, the first defendant had entered into a sale agreement with the
second defendant on 07.12.2004 and executed a sale deed also on 16.11.2005;
even though power was given in favour of the first defendant's
father/Mohammed Sulaiman on 14.06.1993, the same was cancelled on
22.11.2004; after the power deed was cancelled, the power agent had got no
right to enter into a sale agreement with any third party including the plaintiff;
so, the sale agreement dated 01.12.2004 itself is invalid and that will not bind
the first defendant; since the second defendant had purchased the suit property
from its lawful owner, it is for the learned trial Judge to dismiss the suit and it
does not require any interference.
13.Point for consideration:
“Whether the judgment and decree passed by the leaned trial Judge
is fair and proper?”
14.Despite there are three items, the dispute revolves around the first item only.
The fact that the first item of the suit property was purchased by the first
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A.S.(MD)No.181 of 2016
defendant and her sisters by virtue of Ex.A1/sale deed is not denied. The
relationship between the first defendant and the appellant is also admitted as
that of daughter and mother. It is admitted that the first defendant had executed
a power deed in favour of her father/Mohammed Sulaiman on 14.06.1993.
However, the said power deed was cancelled on 22.11.2004. The sale
agreement/Ex.B4 dated 07.12.2004 was executed by the first defendant in
favour of the second defendant. It was subsequent to the cancellation of the
power deed/Ex.B3. The alleged sale agreement dated 01.12.2004 executed in
favour of the plaintiff is said to have been executed by the power of attorney
after the power deed was cancelled.
15.It is submitted by the learned counsel for the appellant that whenever the
power deed is cancelled, that should be brought to the knowledge of the power
agent and if the power agent enters into any transaction with any third parties
with the bonafide belief that power given to him was still in force, that would
bind his principal. The learned counsel for the respondent submitted that the
cancellation of power deed was brought to the knowledge of the power
agent/Mohammed Sulaiman and only because of that, he did not object to the
sale agreement and the subsequent sale deed executed by the first defendant in
favour of the second defendant. Admittedly, the said Mohammed Sulaiman
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A.S.(MD)No.181 of 2016
died on 08.03.2007. Even though the sale deed executed in favour of the
second defendant on 16.11.2005, Mohammed Sulaiman did not raise any
objection in respect of the sale agreement or the sale deed which were marked
as Exs.B4 and B5. In fact, the suit had been filed by the appellant/plaintiff
subsequent to the death of Mohammed Sulaiman.
16.Though it is alleged that the sale agreement dated 01.12.2004 is a registered
one, the said agreement itself is not produced before the Court. Even for the
sake of arguments, if the sale agreement is considered as true, that will not bind
the first defendant because her power agent had executed the sale after the
power deed was cancelled. At no point of time during the life time of
Mohammed Sulaiman, the appellant/plaintiff had taken any step to perform her
part of the contract on the basis of the alleged sale agreement dated 01.12.2004.
So the conduct of the appellant herself would show that she admitted the
invalidity of the sale agreement dated 01.12.2004 and ignored it. Subsequent to
the death of the father of the first defendant, the appellant/plaintiff seems to
have taken advantage of the earlier sale agreement and managed to file the suit
with false allegations.
17.At the risk of repetition, it is registered that the sale agreement on which the
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A.S.(MD)No.181 of 2016
relief of specific performance is sought for itself was not marked as a
document. Though the appellant/plaintiff has failed to prove the validity of her
sale agreement and her right to get the sale deed in respect of the first item of
the suit property, the respondents/defendant have proved satisfactorily that the
sale deed executed in favour of the second defendant by the first defendant,
when she had valid title over the same. Since the second defendant had
purchased the property from its lawful owner, the title in respect of the
undivided 1/4th share in the first item of the suit property would pass in his
favour. The appellant has filed the suit on the basis of an invalid sale
agreement and the learned trial Judge is right in non-suiting the plaintiff for the
relief prayed by her. In my considered view, the judgment and decree of the
learned trial Judge does not require any interference.
18.In the result, this Appeal Suit is dismissed and the judgment and decree of
the learned Additional District and Sessions Judge, Dindigul, dated 23.06.2011
made in O.S.No.31 of 2008 is confirmed. No costs.
08.04.2022
Index : Yes / No
Internet : Yes/ No
ias
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A.S.(MD)No.181 of 2016
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.181 of 2016
R.N.MANJULA, J.
ias
To:
The Additional District and Sessions Court,
Fast Track Court,
Dindigul.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
A.S.(MD)No.181 of 2016
08.04.2022
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