A.S. No. 783 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 7724 of 2016. Case: M.S. Dhanasingh and Ors. Vs Inbam Padmini Selvaraj and Ors.. High Court of Madras (India)

Case NumberA.S. No. 783 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 7724 of 2016
CounselFor Appellant: T.R. Rajagopalan, Sr. Counsel for S. Baskaran, Adv. and For Respondents: M. Peer Mohamed, Adv.
JudgesR. Subbiah and M.S. Ramesh, JJ.
IssueCode of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Indian Penal Code 1860, (IPC) - Section 52; Specific Relief Act, 1963 - Sections 19, 19(a), 19(b); Transfer of Property Act, 1882 - Section 3
Judgement DateApril 11, 2017
CourtHigh Court of Madras (India)

Judgment:

R. Subbiah, J.

  1. This appeal suit has been preferred calling in question, the legality and validity of the judgment and decree dated 22.12.2011 passed in O.S. No. 4121 of 2011 on the file of the City Civil Court, (VII Additional Court), Chennai (for brevity "the Trial Court"), whereby and whereunder, the Trial Court has rejected the plaint filed by the deceased first appellant, viz., M.S. Dhanasingh.

  2. Originally, this appeal suit was filed by M.S. Dhanasingh, who was the plaintiff before the Trial Court. Since he breathed his last during the pendency of this appeal suit, his legal heirs were brought on record as appellants 2 to 8.

  3. However, for the sake of convenience and to avoid prolixity, the parties will be referred to as per their rankings before the Trial Court, i.e., the deceased first appellant will be referred to as plaintiff and the respondents 1 and 2 will be referred to as defendants 1 and 2 respectively.

  4. Originally, the deceased first appellant filed O.S. No. 4121 of 2011 seeking the following relief:

    a specific performance directing the first defendant to execute and register a sale deed in favour of the plaintiff as per the agreement dated 13.03.2006 relating to the 2/3 undivided share along with the first floor and second floor of the property bearing No. 16, Mahalingapuram Main Road, Nungambakkam, Chennai 600 034, after receiving the sale consideration of Rs. 20 lakhs and in default, appoint an Advocate Commissioner to execute and register the sale deed through Court and permit the plaintiff to deposit the sale consideration of Rs. 20 lakhs in Court;

    b consequently, to set aside the sale deed dated 23.02.2011 executed by the first defendant in favour of the second defendant, registered as document No. 176 of 2011 at the office of the Joint Sub Registrar II, Thousand Lights, Chennai, selling the 1/3 share in the property bearing Door No. 16, Mahalingapuram Main Road, Mahalingapuram, Nungambakkam, Chennai 600 034;

    c permanent injunction restraining the second defendant or his men, agents or persons acting through or under him, from interfering with the plaintiff's peaceful possession and enjoyment and administration of the 1st and 2nd floor of the property bearing Door No. 16, Mahalingapuram Main Road, Mahalingapuram, Nungambakkam, Chennai 600 034.

  5. Seeking rejection of the plaint, the second defendant filed I.A. No. 15422 of 2011 which was allowed by the Trial Court vide order dated 03.12.2011. Despite the allowing of the said I.A. to reject the plaint, the suit was posted to 13.01.2012. Hence, the second defendant filed I.A. No. 20257 of 2011, to advance the hearing date of the suit from 13.01.2012 to any earlier date. When the said application came up for hearing, the Trial Court allowed the said application vide order dated 22.12.2011 by advancing the hearing date from 13.01.2012 to 22.12.2011 and rejected the plaint on the ground that once the interlocutory petition seeking rejection of plaint is allowed, the suit is not pending in the eye of law and that due to oversight, the suit was posted on 13.01.2012. Challenging the said judgment and decree, the unsuccessful plaintiff has preferred this appeal suit.

  6. A vignette of the case of the plaintiff is as under:

    6.1 The first defendant is the elder sister of the plaintiff. The first defendant got married in 1950s and she is settled in Singapore. The property bearing Door No. 16, Mahalingapuram Main Road, Mahalingapuram, Chennai - 34 was purchased by the plaintiff from one Prema. The plaintiff purchased 1/3 undivided share in the land along with 650 sq. ft. in the ground floor vide sale deed dated 11.12.1992 registered on 13.12.1992 as Document No. 1013 of 1992 at the office of the Sub Registrar, Thousand Lights. On the same day, the first defendant, who is the elder sister of the plaintiff also purchased the remaining 2/3 undivided share in the land along with 501 sq. ft. in the first floor and 250 sq. ft. in the second floor vide sale deed dated 11.12.1992 registered on 13.12.1992 as Document No. 1012 of 1992 at the office of the Sub Registrar, Thousand Lights. As the first defendant was in Singapore, the plaintiff was residing in the property. The second daughter of the first defendant was given in marriage to the second son of the plaintiff.

    6.2 The plaintiff, in the year 2001, formed a private limited company called Axis Automated Private Ltd. with himself and his two sons as Directors. The said company has been engaged in the business of selling computers and the plaintiff and his two sons were residing in the ground floor and first floor of the property. The plaintiff also has put up additional constructions in the said property.

    6.3 While so, in March 2006, when the first defendant visited and stayed in the house of the plaintiff, the family members of the plaintiff as well as the plaintiff expressed the difficulty in managing the property in two names. Hence, the first defendant, who is the sister of the plaintiff, told the plaintiff that she was planning to settle her 2/3 share in favour of her daughter, but, due to need of money for her future life in Singapore, she wanted Rs. 20,00,000/- for selling the property to the plaintiff. Hence, for this purpose, the first defendant and the plaintiff entered into an agreement on 13.03.2006, in and by which, the first defendant agreed to sell her 2/3 share in the property for a sale consideration of Rs. 20 lakhs to the plaintiff and also agreed to execute the sale deed during her next visit to Chennai. With the bona fide belief that the first defendant would sell her share to the plaintiff, the plaintiff, along with his sons, borrowed money in the year 2007 and put up additional constructions in the first floor and second floor of the property and the plaintiff was ready and willing to perform his part of the contract.

    6.4 When the plaintiff's son who is the son-in-law of the first defendant, along with his wife, who is the daughter of the first defendant, along with his family members, visited the first defendant at Singapore in September 2010, the first defendant promised that she was planning to visit India in early 2011 and at that time, she would receive the amount in India and register the sale agreement dated 13.03.2006. But, for the reasons best known to the first defendant, during her visit to Chennai in 2011, she stayed in the house of her other younger brother B. Prasad at Kolathur, Chennai. Hence, the plaintiff and his family members were not aware of the first defendant's visit as the latter did not inform the former about the same.

    6.5 In such a situation, on 24.02.2011, some officials from the Registration Department came to the property to measure the first floor and second floor and the plaintiff and his family members were shocked and surprised to know from them that a sale deed was registered on 23.02.2011 in respect of the suit property. Hence, on 25.02.2011, the plaintiff applied for an encumbrance certificate and came to know that the first defendant, sans any notice, intimation and consent of the plaintiff and in gross violation of the agreement to sell dated 13.03.2006 and against the assurance and undertaking given to the family members of the plaintiff during their visit to Singapore in September 2010, sold her 2/3 share alone to the second defendant, viz., Mariappan, for a sale consideration of Rs. 75 lakhs. Immediately, on 03.03.2011, the plaintiff's son applied for the certified copy of the sale deed and got the same. In fact, as per the promise, assurance and the direction of the first defendant, the plaintiff was keeping Rs. 20 lakhs ready.

    6.6 Hence, the plaintiff issued a legal notice dated 13.04.2011 to both the defendants to cancel the sale deed dated 23.02.2011 executed by the first defendant in favour of the second defendant and execute the sale deed in the name of the plaintiff as per the agreement dated 13.03.2006. The second defendant issued a reply notice dated 20.04.2011 demanding partition and the first defendant issued reply dated 02.05.2011 contrary to her earlier letter and notice. Hence, the plaintiff filed the suit in question seeking the aforestated relief.

  7. Before the Trial Court, the second defendant, the purchaser of the property, took out an application under Order VII Rule 11, CPC, to reject the plaint. The sum and substance of the averments made in the said affidavit is as follows:

    7.1 The second defendant...

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