Madras High Court
S.A.Alagarsamy (Died) vs C.Dharmaraj on 2 March, 2022
S.A.(MD)No.843 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.843 of 2010
and
M.P.(MD)No.1 of 2015
1.S.A.Alagarsamy (Died)
2.Soundaravalli ... Appellants
Vs.
1.C.Dharmaraj
2.C.Singaraj ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 31.08.2009 passed in A.S.No.105 of
2007 on the file of the 2nd Additional Sub Judge, Madurai, confirming the
judgment and decree dated 30.03.2007 passed in O.S.No.344 of 2002 on the
file of the District Munsif Court, Madurai Taluk, Madurai.
For Appellants : Mr.A.R.Sethupathy
For Respondents : Mr.P.M.Vishnuvarthanan for R1
Mr.A.Saravanan for R2
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S.A.(MD)No.843 of 2010
JUDGEMENT
The contesting defendants in O.S.No.344 of 2002 on the file District
Munsif Court, Madurai Taluk, Madurai filed this second appeal. The first
respondent herein namely, C.Dharmaraj filed the said suit seeking the relief of
specific performance. The third defendant/C.Singaraj is none other than the
brother of the plaintiff. There is not dispute that the suit property belonged to
defendants 1 and 2. The defendants 1 and 2 had executed mortgage deed dated
01.04.1997 (Ex.A2) in favour of the plaintiff and the third defendant.
Thereafter, the suit sale agreement dated 20.06.1997 was also entered into
(Ex.A1). The consideration was fixed at Rs.27,720/- and a sum of Rs.3,000/-
was paid as advance on 20.06.1997 on his behalf and on behalf of the third
defendant. The time for completing the sale was five years. Legal notice dated
31.05.2002 (Ex.A3) was issued calling upon the defendants 1 and 2 to execute
the sale deed. Though the legal notice was received, they did not respond.
Therefore, the suit for specific performance came to be laid. Since the plaintiff
and the third defendant were not sailing together, the plaintiff alone filed the
suit for specific performance even though the sale agreement was in favour of
both the plaintiff and the third defendant. The third defendant also remained
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S.A.(MD)No.843 of 2010
ex-parte. The defendants 1 and 2 contested the suit. Based on the divergent
pleadings, the trial Court framed the necessary issues.
2.The plaintiff examined himself as P.W.1 and Exs.A1 to A6 were
marked. The defendants examined themselves as D.W.1 and D.W.2 and two
other witnesses were also examined but no documentary evidence was marked
on their side.
3.After consideration of the evidence on record, the trial Court decreed
the suit as prayed on 30.03.2007. Aggrieved by the same, the defendants 1 and
2 filed A.S.No.105 of 2007 before the II Additional Sub Court, Madurai. By
the impugned judgment and decree dated 31.08.2009, the decision of the trial
Court was confirmed and the appeal was dismissed. Challenging the same, this
second appeal came to be filed. During the pendency of the second appeal, the
first appellant/Alagarsamy passed away. Since the second
appellant/Soundaravalli, his sister was sole legal heir, the question of taking
steps to bring legal heirs on record did not arise.
4.Though the second appeal was filed way back in the year 2010, it has
not been admitted till date. The learned counsel appearing for the surviving
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S.A.(MD)No.843 of 2010
appellant reiterated all the contentions set out in the memorandum of grounds
and called upon this Court to formulate the substantial question of law and
admit the second appeal and take it up for disposal later.
5.Per contra, the learned counsel for the first respondent submitted that
no substantial question of law arises for consideration. The learned counsel for
the second respondent submitted that he is very much in joint possession of the
suit property and therefore, the sale deed may have to be jointly executed in
favour of the plaintiff and the third defendant.
6.I carefully considered the rival contentions and went through the
evidence on record. There is no dispute on the basic facts. The Courts below
have concurrently found that the defendants 1 and 2 executed Ex.A1/sale
agreement dated 20.06.1997 and the time for completion of the sale was fixed
as five years. It has been found that the plaintiff has made out a case of grant
of specific performance and nothing has been brought out to dislodge the
concurrent findings rendered by the Courts below in favour of the plaintiff. No
substantial question of law really arises for consideration. However, one aspect
of the matter must be taken note of. Ex.A1/sale agreement was executed not
only in favour of the plaintiff but also in favour of the third defendant. The
third defendant did not come forward for filing the suit along with the plaintiff.
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S.A.(MD)No.843 of 2010
Now the question is whether when one of the joint promisee is not willing to
join as a co-plaintiff, whether a suit for specific performance can be
maintained. The issue is no longer res integra. There are catena of decisions
holding that such a suit is very much maintainable. One such decision is
reported in AIR 1979 Madras 130 (Ponnuswami Gounder Vs. Rama Boyan
and Others). In the said decision, it was held that where the contract was in
favour of more than one person and if some of them are not willing to join as
plaintiffs, the others could file a suit for specific performance of contract
impleading those who are not willing, as plaintiffs and a person cannot be
prevented from filing a suit merely because he is only a joint promisee and
other promisees have refused to join him in filing the suit. Of course in the
said decision, it has been held that the inter-se rights of the plaintiff and the
unwilling joint promisee will have to be worked out separately. In this case,
the defendants 1 and 2 had executed a joint mortgage in favour of the plaintiff
and the third defendant. It also seen that the plaintiff and the third defendant
are in joint possession of the suit property. Therefore even while sustaining the
impugned judgment and decree, which have directed the execution of the sale
deed conveying the suit property in its entirety in favour of the plaintiff, the
right between the plaintiff and the third defendant will have to be worked out
separately. The said issue is left open.
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S.A.(MD)No.843 of 2010
7.The second appeal is dismissed with the aforesaid observations. No
costs. Consequently, connected miscellaneous petition is closed.
02.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The II Additional Sub Court,
Madurai.
2.The District Munsif Court,
Madurai Taluk,
Madurai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.843 of 2010
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.843 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.843 of 2010
02.03.2022
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