Madras High Court
Syed Namath vs M.M.Fahim on 4 October, 2023
A.S.No. 221 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No. 221 of 2019
Syed Namath .. Appellant
Vs
1. M.M.Fahim
2. Syed Abrar
3. Syed Asrar ... Respondents
PRAYER : Appeal Suit filed under Sec. 96 r/w Order 41 Rule 1 of Civil
Procedure Code, praying to set aside the judgment and decree passed in
O.S.No. 8447 of 2010 dated 31.10.2018 on the file of IV Addl. jUDGE,
City Civil Court, Chennai.
For Appellant : Mr.C.Uma Shankar
For Respondents : Mr. P.Settu
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A.S.No. 221 of 2019
JUDGEMENT
The appellant herein is the 1st defendant in the suit in O.S.No.8447
of 2010 (C.S.No.87 of 2009) on the file of City Civil Court, Chennai,
which was filed by the 1st respondent/plaintiff for the relief of specific
performance directing the defendants to execute a sale deed in his favour
based on the sale agreement dated 23.09.2005. Though the said
agreement was inexecutable one, the trial judge on considering evidence
of both sides, decreed the suit directing the 1st defendant to execute the
sale deed in favour of plaintiff after receiving balance amount and the
suit against his sons viz., defendants 2 and 3 was dismissed. Challenging
the said findings, the 1st defendant preferred this appeal.
2. For the sake of convenience, parties are referred as per the
ranking in the suit.
3. The case of plaintiff is that the suit property comprised in
Survey No.76/2 originally belong to wife of 1st defendant viz., Sameena
Sultana, who died intestate in the year of 1999 leaving behind the
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A.S.No. 221 of 2019
defendants 1 to 3 as her legal heirs (husband and sons) was offered to sell
by the 1st defendant for the total sale consideration of Rs.15,00,000/-. The
plaintiff also agreed to purchase the same and entered into a sale
agreement with him on 23.09.2005 and paid a sum of Rs.5,00,000/- on
the same day as advance. Thereafter, on 07.10.2005 he paid another sum
of Rs.5,00,000/- and the balance sale consideration is to be paid after
obtaining permission from the court for selling the shares of minor sons
(Defendants 2 and 3). To get the permission, a petition in O.P.No.49 of
2006 was filed before the District Court, Chenglepet, but the 1st
defendant was not interested to get the permission from the court. Hence,
the petition was dismissed for non-prosecution. However, the plaintiff
issued a legal notice on 16.05.2006 with false allegation stating that the
property was under-valued, but the value was fixed as per the market
value, however, due to non-cooperation of 1st defendant, the plaintiff
lodged a complaint against him in Crime No.69 of 2006, wherein he was
arrested and he was in judicial custody for 3 days. After release on bail,
he failed to cooperate in performing the terms of the contract, which was
given in the agreement. Further, 1st defendant filed a suit in O.S.No. 417
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A.S.No. 221 of 2019
of 2006 seeking the relief of bare injunction against the plaintiff. The
conduct of 1st defendant would show that he wantonly neglected to
execute the sale deed. Hence, the plaintiff filed the suit.
4. Originally, a suit was filed against the 1st defendant and
thereafter his sons were added as defendants 2 and 3. The objection of 1st
defendant is that he was not intended to sell the property through a real
estate broker, however, the plaintiff approached him and without any
verification, he entered into sale agreement without including the name
of his two minor sons. Subsequently, he insisted to get permission from
the court and a petition in O.P.No. 49 of 2006 was filed at his instance,
but the property originally belongs to his deceased wife. After her death,
his two sons are also having equal shares as such he is not entitled to
enter into a sale agreement for entire property including shares of her
minor sons. Based on the agreement, he gave only a sum of Rs.5,00,000/-
and not a sum of Rs.10,00,000/- as claimed by the plaintiff. As per the
terms of agreement, within 10 days of the agreement, the plaintiff bound
to pay the balance amount and to get the sale deed, but he failed. Hence,
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A.S.No. 221 of 2019
the plaintiff is not entitled for the relief as he was not ready and willing
to perform his part of agreement within the stipulated time.
5. The 2nd and 3rd defendants, sons of 1st defendant by filing written
statement separately would submit that as legal heirs of their mother, they
are having shares in the property and their father has no right to enter
into sale agreement including their shares and without proper
verification, plaintiff compelled the 1st defendant to enter into a sale
agreement. Therefore, they prayed to dismiss the suit against them.
6. Before the trial court, on considering both side submissions, the
trial judge framed four issues. On the side of plaintiff, he was examined
as P.W.1 and documents Ex.A1 to A9 were marked. On the side of
defendants, 1st defendant was examined as D.W.1 and no documents
adduced on their side. Considering both oral and documentary evidence,
the trial court held that the property belongs to deceased wife of 1 st
defendant and as her legal heirs, the defendants 1 to 3 are having share in
the property, but the sale agreement was executed by the 1st defendant for
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A.S.No. 221 of 2019
entire property and received a sum of Rs.10,00,000/- as part of the
advance and the same was admitted by D.W.1. Considering his evidence,
the trial judge held that the 1st defendant has entered into a sale
agreement, but he is not interested to get permission from the court to sell
shares of minor sons, thereby the readiness and willingness of plaintiff
was proved. Accordingly, the suit was decreed against the 1st defendant
directing him to execute a sale deed by receiving balance sale
consideration. Against his sons, viz., defendants 2 and 3, the suit was
dismissed. Aggrieved over the said findings, the 1st defendant preferred
this Appeal.
7. The learned counsel for appellant would submit that the trial
judge erroneously concluded that the plaintiff was ready and willing to
perform his part of agreement, on the other hand, within 10 days, plaintiff
not expressed his readiness and the same was not properly appreciated by
the trial judge. Hence, he prayed to set aside the findings of trial judge as
unjust one. Further, he would submit that the trial court also committed
an error in decreeing the suit directing the 1st defendant to execute the
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A.S.No. 221 of 2019
sale deed for entire property including shares of defendants 2 and 3 and
without appreciating the evidence on record that as legal heirs of
deceased mother, defendants 2 and 3, who are having shares, they are not
parties to the sale agreement. So, the 1st defendant also have no locus
standi to execute the sale deed, thereby the findings rendered by the trial
judge is total misconception of law and on facts and the same is liable to
be set aside. He would further submit that the trial judge failed to
appreciate the written statement submitted by 2nd and 3rd defendants and
erroneously decreed the suit in favour of plaintiff for execution of sale
deed in respect of entire property as such is unsustainable one. Hence, he
prayed to set aside the findings of the learned trial judge.
8. By way of reply, the learned counsel for 1st respondent/plaintiff
would submit that having admitted the sale agreement and received an
advance amount, the appellant/1st defendant is bound to execute the sale
deed and the same was rightly appreciated by the trial judge, which needs
no interference, thereby he prayed to dismiss the appeal as no merit.
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A.S.No. 221 of 2019
9. The point for consideration is whether the plaintiff is entitled for
the relief as he prayed for? Whether the trial judge committed an error in
directing the 1st defendant to execute the sale deed in respect of entire
property including shares of defendants 2 and 3, who were not parties to
the said sale agreement? On considering both side submissions and
evidence, it would clearly reveals that the plaintiff and the 1 st defendant
entered into a sale agreement in respect of suit property on 23.09.2005.
During the cross-examination, D.W.1 also admits that he entered into a
sale agreement and the sale consideration was fixed for Rs.15,00,000/-
and also admitted that he received a sum of Rs.10,00,000/- as part of
advance on two occasions. But, the 1st defendant contend that the
property originally belongs to his deceased wife and after her demise, as
her legal heirs, he along with two minor sons are having share in the
property, but the plaintiff insisted him to enter into a sale agreement for
entire property. But, as per Muslim Law, he is entitled only 1/4th share
and the remaining 3/4th share belong to residuary viz., sons. Therefore, he
was not able to perform his part of agreement, besides he would also
content that within 10 days of the agreement, the plaintiff bound to pay
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A.S.No. 221 of 2019
balance amount, but he failed. Hence, the 1st defendant is also not entitled
to proceed with the agreement.
10. Admittedly, no time limit was fixed, but the 1st defendant
contends that within 10 days of agreement, the plaintiff bound to pay the
balance amount, per contra, the plaintiff submitted that the 1st defendant
insisted him to obtain permission from the court to sell the shares of his
sons and to that effect, a petition in O.P.No. 49 of 2006 was filed before
the District Court, Chenglepet and thereafter, the said petition was
dismissed due to the default of 1st defendant on 29.09.2006, the said
order copy was marked as Ex.A8 to prove the said aspect. So, the 1 st
defendant was not entitled to proceed with the O.P. to get the permission
to sell shares of minors. He would also submit that the plaintiff gave a
complaint against him, which was registered in Crime No. 69 of 2006
and he was in judicial custody for 3 days. Even then, he is not ready to
execute the sale deed. Hence, the suit was filed by the plaintiff.
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11. It is also an admitted fact that minor sons of 1st defendant
holding major shares and the 1st defendant is entitled for 1/4th share in the
property, but as per Ex.A1 agreement, for entire property, he entered into
a sale agreement without obtaining permission from the court.
Furthermore, after obtaining majority, the defendants 2 and 3 also not
agreed to execute the sale deed. At the time of execution of sale
agreement, the defendants 2 and 3 were minors and after attaining
majority, they cannot be compelled. The trial judge also noticed that
minor shares were included in the agreement without their permission,
but finally held that 1st defendant received the advance sum of
Rs.10,00,000/- including minor shares, thereby he is bound to execute
the sale deed in favour of plaintiff for entire property and dismissed the
suit as against defendants 2 and 3, since because they are not parties to
the agreement.
12. As rightly pointed out by the appellant's counsel that without
permission of the court, the 1st defendant has no locus standi to enter into
a sale agreement with the plaintiff in respect of minor sons' share. Even
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A.S.No. 221 of 2019
after obtaining majority, the defendants 2 and 3 have not accepted the
said agreement. The defendants 2 and 3 are having share in the suit
property as legal heir of their deceased mother and without obtaining
permission from the court, the 1st defendant is not entitled to enter into
sale agreement, thereby the said agreement would not bind the
defendants 2 and 3 shares. But, without appreciating the legal
proposition, the trial judge directed the 1st defendant to execute the sale
deed in favour of plaintiff for entire property including defendants 2 and
3 shares, since because he received a sum of Rs.10,00,000/- as part of
advance, which is totally erroneous one. At the most, the 1st defendant
can enter into a sale agreement in respect of his undivided share and not
for the entire property. Therefore, the findings rendered by the learned
trial judge by decreeing the suit in favour of plaintiff and directing the 1st
defendant to execute the sale deed in respect of entire property is totally
erroneous one and the same is liable to be set aside.
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A.S.No. 221 of 2019
13. It is a settled proposition, the plaintiff is bound to prove his
case and during the trial, he admits that the suit property originally
belongs to deceased wife of 1st defendant. Therefore, the 2nd and 3rd
defendants, sons of 1st defendant are having 3/4th share in the property,
but without proper verification and without obtaining proper permissions
from the court of law, he entered into a sale agreement as such it would
clearly indicates that having knew about the nature of the property,
without obtaining permission from the court and without obtaining
proper permission, he entered into the sale agreement for entire property.
It would itself shows that he is not a bonafide purchaser. Furthermore,
the agreement was entered on 23.09.2005, but the legal notice was given
only on 16.05.2006 nearly about 8 months later, however, in that aspect,
within 10 days, the plaintiff bound to pay balance amount, but no
explanation was offered. So, without any evidence, the trial judge
erroneously held that plaintiff is always ready and willing to perform his
part of agreement. Hence, he is not entitled for the relief of specific
performance. Both issues are answered accordingly. Therefore, the
findings of trial judge is liable to be set aside. That apart, there is an
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A.S.No. 221 of 2019
admission on the side of 1st defendant that he received a sum of
Rs.10,00,000/- as part of sale consideration, thereby he is liable to be
directed to refund the said amount with interest. Accordingly, this Appeal
Suit is allowed and the findings of the trial judge in O.S.No. 8447 of
2010 is set aside, thereby the suit is dismissed in respect of specific
performance and the 1st defendant is directed to refund the amount of
Rs.10,00,000/- with interest at the rate of 12% from the date of
agreement till the date of decree and thereafter, 6% of interest till the date
of realisation. No costs.
04.10.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
IV Addl. Judge, City Civil Court,
Chennai.
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A.S.No. 221 of 2019
T.V.THAMILSELVI, J.
rpp
A.S.No. 221 of 2019
04.10.2023
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