Madras High Court
Thapasimuthu Nadar vs Gopinathan ... 1St on 21 June, 2022
S.A(MD).No.323 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.SESHASAYEE
S.A(MD)No. 323 of 2011
Thapasimuthu Nadar .... Appellant/Appellant/1st Defendant
Vs.
1.Gopinathan ... 1st Respondent/Respondent/Plaintiff
2. Sekar
3.Vimala .. Respondents 2 and 4/Respondents/
Defendants 2 and 3
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree 24.02.2010 in A.S.No.29 of
2008 on the file of the District Judge, Kanyakumari at Nagercoil
confirming the judgement and decree dated 23.04.2008 in O.S.No.26 of
2004 on the file of the Subordinate Judge, Kuzhithurai.
For Appellant : Ms.Anandhavalli
For R1 : Mr.B.Christopher
For R2 & R3 : Mr.P.Subbiah
JUDGMENT
Challenging a concurrent finding in a suit for specific performance in
O.S.No.26 of 2004 and in A.S.No.29 of 2008, the first defendant has come
forward with a present Second Appeal.
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S.A(MD).No.323 of 2011
2.The plaintiff has come forward with the straightforward case. According
to him, on 16.10.2003, he entered into a registered sale agreement with the
first defendant for purchasing the suit property belonging to the first
defendant for total sale consideration of Rs.1,20,000/- under an agreement
and paid Rs.1,10,000/- as advance and the agreement stipulated 3 months
time for completing the same. Thereafter, the plaintiff issued Ex.A.2 suit
notice dated 24.12.2003 well within three months time stipulated for
performing the contract and this was not replied to by the defendants.
Thereafter, the plaintiff came forward to perform his contractual obligation
under Ex.A.1. Hence, the suit was laid for enforcing the contract.
3. The principal defence taken by the defendants in their written statements
is that Ex.A.1 was executed only as a security for a certain loan, which the
first defendant borrowed from the plaintiff.
4. The dispute went to trial and before the trial court, the plaintiff examined
himself as P.W.1 and produced Ex.A.1 to Ex.A.11. The various documents
he had produced inter alia included the documents showing the market
value of the property in question at the relevant time. For the defendants, the
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S.A(MD).No.323 of 2011
first defendant entered witness box as D.W.1 and the son of the first
defendant, who is arrayed as the second defendant, was examined as D.W.2
and they produced no documents on their side.
5. It may be stated that during the pendency of the suit, the first defendant
has sold the property to his son, who in turn his son sold the property to his
sister, the third defendant. Given this setting, the trial court after
appreciating the evidence before it, decreed the suit. So far as successive
pendente lite transfers are concerned, the trial court came to the conclusion
that they are not bonafide purchasers since they are siblings of the first
defendant. Aggrieved by the decree of the trial court, the first defendant has
preferred A.S.No.29 of 2008 in which the defendants 2 and 3 have filed
Cross Objection. In other words, it is an inner family affair between the first
defendant and his children. The First Appellate Court has chosen not to
disturb the findings of the trial court and dismissed the appeal.
6. The first defendant has preferred the present Second Appeal. This Second
Appeal is not yet admitted. Heard the learned counsel for the appellant, the
learned counsel appearing for the first respondent and the learned counsel
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S.A(MD).No.323 of 2011
appearing for the respondents 2 and 3. This Court has perused the
documents.
7. This Court finds that the judgments of the courts below are in order and
appreciation of the evidence by them cannot be faulted. After all, the
defendants' conduct is also not appreciable since they did not issue a reply
notice, as it would signify their conduct in relation to the cause of action.
Added to this, was the first defendant's hurry to sell the property to his own
son, and the latter's hurry to sell the property to his sister. In a suit for
specific performance, not only the conduct of the plaintiff matters, but so
also the conduct of the defendants.
8. Looking over from any conceivable angle, this Court is satisfied that
there is no ground to admit this Second Appeal and accordingly, the same is
dismissed. No costs.
9. The learned counsel for the respondent/plaintiff submitted that during the
pendency of this Second Appeal, an Execution Petition has been laid and
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S.A(MD).No.323 of 2011
sale deed has been executed by the Executing Court on behalf of the
judgment debtor and delivery of property has also been obtained and the
appeal has become infructuous. This is recorded. Since this Court has
chosen not to admit the appeal, the statement of the learned counsel for the
respondent/plaintiff may not be very material, though they are not
irrelevant.
21.06.2022
Index : Yes/No
Internet: Yes/No
CM
To
1.The District Judge, Kanyakumari at Nagercoil
2.The Subordinate Judge, Kuzhithurai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.323 of 2011
N.SESHASAYEE, J.,
CM
S.A(MD).No.323 of 2011
21.06.2022
https://www.mhc.tn.gov.in/judis
