Madras High Court
Gurunathan vs Appasamy Thevar (Died) ... 1St on 8 March, 2022
S.A.No.1890 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2022
C O R A M
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
S.A.No.1890 of 2000
Gurunathan
...Appellant / Appellant
/ Defendant 3
Vs.
1.Appasamy Thevar (Died) ... 1st Respondent /
1st Respondent /
Plaintiff
2.Rani Ammal ... Respondent 2 /
Respondents 2 /
Defendant 1
3.Rajamanickam ... Respondent 3 /
Respondents 3 /
Defendant 2
4.Pushparaj
5.Susila
6.Keerthika ...Respondents 4 to 6
[Respondents 4 to 6 were
brought on record as the Legal
heirs of respondent 1 vide
order dated 15.12.2021 in
CMP(MD)NOs.3649 to 3651 of
2000]
PRAYER: Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908, as against judgment and
decree of the Subordinate Judge, Pattukottai in A.S.No.15
of 2000 dated 11.09.2000, which was filed against the
1/11
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S.A.No.1890 of 2000
judgment an decree of the District Munsif Court,
Pattukotai in O.S.No.332 of 1996 dated 27.08.1999.
For Appellant : Mr.V.Nagendran
For Respondent : Dismissed for default
No.2
For Respondent : No appearance
No.3
For Respondent : Ms.S.Vijaya Shanthi
Nos.4 to 6
JUDGMENT
This second appeal is filled by the third defendant
as against the concurrent findings of the courts below in
O.S.No.332 of 1996 and in A.S.No.13 of 2000.
2.The suit was filed for specific performance by the
1st Respondent / Plaintiff based on the sale agreement,
dated 06.02.1996, executed by the 2nd Respondent /
1st Defendant. The suit was decreed by the learned
District Munsif, Pattukottai in O.S.No.339 of 1996 by
judgment dated 27.08.1999. As against the decree the
Appellant / 3rd defendant preferred an appeal before the
learned Subordinate Judge, Pattukottai in A.S.No.15 of
2000 and the same was dismissed by the judgement and
decree dated 11.09.2000. As against the concurrent
findings, the present second Appeal is filed.
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S.A.No.1890 of 2000
3.The brief facts leading to the filing of the suit
are as follows:
(i) The 1st Defendant Rani Ammal wife of Rajamanikam
(2nd Defendant) entered into an agreement with regard to
the property in survey number 30-8 in Ponnavarayankottai
village in Pattukottai Taluk in Pudukottai District for
0.17.0 Acres of her husband's property for a sale
consideration of Rs.30,000/-.
(ii)The property belongs to the 2nd defendant. The
2nd defendant was in abroad and therefore, on the oral
consent of the 2nd defendant, the 1st defendant entered
into a sale agreement dated 06.02.1996. The 1st defendant
failed to execute the said sale agreement. Therefore the
1st respondent / plaintiff filed a suit for the specific
performance in O.S.No.332 of 1996. The trail Court came
to a conclusion that even before the exchange of notice,
the subject property was transferred in the name of the
appellant / 3rd defendant, who is none
other than the brother of 2nd respondent /
2nd defendant.
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S.A.No.1890 of 2000
(iii)The Trail Court found that the 1st and 2nd
defendants entered into an agreement with the plaintiff
to meet out the expenses of their daughter’s marriage.
The 2nd defendant was in abroad during the relevant
period. Therefore on his behalf, the wife / 1st defendant
acted as an agent and executed a sale agreement dated
06.02.1996. The agreement is an implied contract as per
section 187 of The Indian Contract Act and therefore 2nd
defendant is duty bound to execute the agreement as per
section 187 of the Indian Contract Act.
(iv) As against the judgement and decree of the trial
Court, 3rd defendant Gurunathan subsequent purchaser has
filed an appeal before the Subordinate Court, Pattukottai
in A.S.No.15 of 2000. The appellate Court by judgment
and decree dated 11.09.2000 dismissed the appeal by
confirming the judgment and decree of the trial Court. As
against the same, the present second appeal is file.
4.This Second was admitted on 14.12.2001 on the
following substantial questions of law.
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S.A.No.1890 of 2000
(i)Whether the agreement of sale
executed by the wife, without consent of
the Husband, is enforceable against the
husband by invoking section 187 of Indian
Contract Act?
(ii)Whether the courts below are
justified in granting decree for different
survey number when the proper details
regarding property have not been given in
the plaint?
5.The learned Counsel for the appellant submits that
the very alleged sale agreement Ex.A1, dated 06.02.1996,
entered into between the 1st defendant and the plaintiff
is not at all a valid contract. In the absence of any
title over the property, the 1st defendant cannot enter
into an agreement with the plaintiff. Further, mentioning
the survey number, description and extent of property
wrongly in the agreement itself would show that the
agreement was entered into without the knowledge of the
2nd defendant. Therefore, the implied agency is not
applicable to transfer the immovable property. Even
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S.A.No.1890 of 2000
according to the plaintiff, the 1st defendant informed
that her husband has given a letter authorising her to
enter into a sale agreement. But such a letter has not
been produced before the Court.
6.The learned Counsel further submits that three
brothers are having shares in the suit property. Taking
advantage of the enmity between the 1st defendant and the
3rd defendant, in the absence of 2nd defendant in India,
the 1st defendant colluded with the plaintiff and created
the agreement, without the consent of the 2nd defendant
thereby depriving the rights of the 2nd and 3rd defendants.
Therefore, the judgment and decree passed by the Courts
below are liable to be set aside and the appeal be
allowed.
7.The learned Counsel for the respondents submits
that both the Courts below have rightly decided the issue
and there is no reason to interfere with the judgments of
the Courts below.
8.Heard the learned counsel for the appellant and the
counsel for the respondents 4 to 6.
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S.A.No.1890 of 2000
9.The execution of the sale agreement dated
06.02.1996, has not been denied by the 2nd respondent /
1st defendant. In the reply notice dated 25.11.1996, 2nd
respondent / 1st defendant had accepted the receipt of the
advance amount from the 1st respondent / plaintiff. Since
her husband was in abroad, she executed the sale
agreement by obtaining oral consent from her husband and
on the arrival of her husband she executed the sale deed
in favour of the 1st respondent / plaintiff. Such a
condition was also mentioned in the sale agreement dated
06.02.1996.
10.The trail court found that the 2nd respondent /
1st defendant received the money as advance for the sale
consideration and therefore the 2nd respondent is bound to
execute the sale deed in favour of the
1st respondent /plaintiff. The 2nd and 3rd respondents,
husband and wife did not challenge the judgment and
decree passed by the courts below. However, the
subsequent purchaser Brother-in-law of 2nd respondent)
filed an appeal before the Subordinate Court, Pattukottai
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S.A.No.1890 of 2000
and also before this court. The 3rd respondent though
claimed that he had not given his consent, the 3rd
respondent has not taken any steps to declare the sale
agreement 06.02.1996 as null and void and also had not
initiated any criminal action against the wife.
11.The 1st and 2nd defendants were in need of money
for their daughter’s marriage. The husband 2nd defendant
was in aboard during the relevant period and 1st defendant
wife took a stand in her written submission that the sale
agreement was based on the oral consent given by her
husband. The same was marked as Exhibit Ex.A4 and Ex.A5.
The 3rd respondent has also confirmed it that the 2nd
respondents has not filed any complaint as against the
wife and not challenged the sale agreement dated
06.02.1996.
12.The relationship of the parties are husband and
wife and the wife acted as agent. It would be relevant to
extract section 187 of the Indian Contract Act, which
reads as follows: -
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S.A.No.1890 of 2000
187. Definitions of express and implied
authority. An authority is said to be
express when it is given by words spoken
or written. An authority is said to be
implied when it is to be inferred from
the circumstances of the case; and
things spoken or written, or the
ordinary course of dealing, may be
accounted circumstances of the case. —An
authority is said to be express when it
is given by words spoken or written. An
authority is said to be implied when it
is to be inferred from the circumstances
of the case; and things spoken or
written, or the ordinary course of
dealing, may be accounted circumstances
of the case."
13.In the light of the above discussion, Section 187
of Indian Contract Act and also the circumstances of case
and subsequent conduct of the 3rd respondent /2nd
defendant and 2nd respondent /1st defendant would attract
the implied contract and therefore, this court is not
inclined to interfere with the findings of the courts
below. Accordingly this second appeal is dismissed and
the judgement and decree passed in O.S.No.332 of 1996
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S.A.No.1890 of 2000
dated 27.08.1999 on the file of District Munsif Court,
Pattukottai, as well as in A.S.No.15 of 2000 dated
11.09.2000 on the file of Subordinate Court, Pattukottai,
are hereby confirmed. No costs.
08.03.2022
index : yes/No
dsk
To
1.The Sub Judge,
Pattukottai.
2.The Principal Districct Munsif,
Pattukottai
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1890 of 2000
B.PUGALENDHI., J
dsk
JUDGMENT MADE
IN
S.A.No.1890 of 2000
08.03.2022
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