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Madras High Court · body

2010 DIGILAW 2048 (MAD)

M. Palanisamy v. P. Kannagi

2010-04-30

B.RAJENDRAN

body2010
Judgment :- 1. A.S. No. 986 of 1997 is filed against the decree and judgment dated 28.10.1997 made in O.S. No. 646 of 1993 by the Defendants 6 to 8 in that Suit. 2. A.S. No. 120 of 1998 has been filed by the Defendants 1 to 4 in O.S. No. 646 of 1993. 3. Tr.A.S.No.116 of 2003 has been filed as against the decree and judgment dated 28.10.1997 made in O.S. No. 594 of 1995 on the file of Subordinate Judge, Erode by the Defendants 1 to 4 in that Suit. 4. The Court below passed a common judgment in O.S. No. 646 of 1993 as well as O.S. No. 594 of 1995. The First Respondent in all the three Appeals namely Kannagi has instituted both the Suit in O.S. No. 646 of 1993 as well as O.S. No. 594 of 1995. For the sake of convenience, the parties shall be referred to as they were shown in O.S. No. 646 of 1993, which is the comprehensive Suit, in which all the parties to the Appeals have been arrayed. 5. The First Respondent in all the three Appeals namely Kannagi has originally filed O.S. No. 254 of 1990 on the file of the District Munsif Court, Erode as against Sarasammal, Nallasamy, Jayachandran and Minor. Sathishkumar, represented by his father and guardian Nallasamy, for permanent injunction restraining them from alienating or encumbering the suit properties in contravention of the Sale Agreement dated 09.06.1989 executed in her favour and for other consequential relief. 6. In the Suit in O.S. No. 254 of 1990, the Plaintiff had averred that the properties mentioned in the schedule of the Plaint is situate in Villarasampatti Village, Erode Taluk belonged to the Defendants. The Defendants originally entered into a written agreement agreeing to sell the suit property to her on 09.06.1989 and received a sum of Rs. 75,000/- from her as advance in the presence of outsiders. The sale price, as agreed between the parties, was Rs.2,09,000/- per acre. As there was only a oral partition, it was agreed that the Defendants has to get a permanent Partition Deed with regard to the suit properties from the other shares and give possession of the suit property to the Plaintiff, thereafter, within a period of one year, the Plaintiff has to pay the balance sale consideration and get the sale deed executed at her expenses. In the event of failure to do so, the advance amount of Rs. 75,000/- paid by the Plaintiff will be forfeited and if the other side is at fault, the Plaintiff is entitled to file a Suit for Specific Performance. It was further pleaded that in spite of nine months’ lapse after execution of Sale Agreement, as there was no partition effected and as the Defendants are attempting to encumber and alienate the suit properties to third parties contrary to the Agreement of Sale, the Plaintiff has filed the said Suit. According to the Plaintiff, permanent partition, a required, has not been obtained and hence, she could not claim the relief of Specific Performance with regard to the suit properties. The Plaintiff is always ready and willing to perform her part of the contract, therefore, she reserved her right to file a separate Suit for Specific Performance of the Agreement of Sale. 7. The Second Defendant filed a Written Statement, which was adopted by the First Defendant, contending that the Defendants are not liable to execute the Sale Deed in favour of the Plaintiff in respect of the suit property. It was further contended that though the document dated 09.06.1989 is purported to be a Sale Agreement, according to the Defendants, it is only a loan transaction. The Defendants approached the Plaintiff for a loan of Rs.75,000/- in July 1989. The Plaintiff, being a money lender, insisted the Defendants to execute an Agreement of Sale in respect of the suit property instead of promisory note or mortgage deed. She also promised that in the event of repayment of money with 18% interest, the document would be returned. The Defendants were compelled to accept this demand as they were in a bad financial position and were in need of money. In such circumstances, the Defendants executed the suit agreement. It was further stated that the property itself does not belong to the Defendants absolutely as on the date of executing the suit agreement and there was no guarantee that the Defendants would get the same property in partition. It was further contended that even on that date of execution of the Sale Agreement, the value of the suit property would be Rs.5 lakhs per acre and therefore, no prudent man would accept to sell it at Rs.2,09,000/- per acre. It was further contended that even on that date of execution of the Sale Agreement, the value of the suit property would be Rs.5 lakhs per acre and therefore, no prudent man would accept to sell it at Rs.2,09,000/- per acre. As the value of the property is increasing day by day, the Plaintiff has come forward with the present Suit to illegally grab the suit property. According to the Defendants, they have entered into a registered partition with the other sharers (pangali) on 14.09.1990 as required (subsequent to the filing of the Suit) wherein the suit property has fallen to the share of Palani, Velusamy @ Manokaran, etc., therefore the contract is unconscionable and unenforceable in law, even if it true. It was further contended that the contract has frustrated due to the subsequent events and therefore they sought for dismissal of the Suit. 8. During the pendency of the Suit, in view of the subsequent events of execution of Partition Deed dated 14.09.1990, the Plaintiff has filed the second Suit namely O.S. No.646 of 1993 for the following reliefs: (a) Directing the Defendants to execute a Sale Deed in favour of the Plaintiff in respect of ‘a’ schedule property as per the terms of the Sale Agreement dated 09.06.1989; (b) or to divide the ‘B’ Schedule property by metes and bounds with reference to good and bad soil and allot 3 acres to the Defendants 1 to 4 and directing the Defendants 1 to 4 to execute the so allotted 3 acres to the Plaintiff; (c) in the alternative directing the Defendants 1 to 4 to return the earnest money with interest in a sum of Rs.1,11,000/- with subsequent interest at 12% per annum for Rs.75,000/- from the date of Suit till the date for realisation. 9. In the second Suit in O.S. No.646 of 1993, the Plaintiff has impleaded Sarasammal, Nallasamy, Chandrasekaran, Minor Sathishkumar, represented by father and guardian Nallasamy, who were also Defendants in the former Suit, as Defendants 1 to 4, one Sathasivam as fifth Defendant, who is the attestor to the agreement and Defendants 6 to 8, who have been allotted the suit property in the partition dated 14.09.1990. 10. 10. The Plaintiff in the Suit O.S.No.646 of 1993 would contend that the First Defendant is the mother of the Second Defendant, Defendants 3 and 4 are sons of the Second Defendant, Defendants 1 to 4 were jointly entitled to lands to an extent of 3 acres in Survey No.193/3C. The Second Defendant made a representation to the Plaintiff that the lands are divided from other co-sharers and offered to sell the same to the Plaintiff at the rate of Rs.2,09,000/- per acre. Such an offer was accepted and originally an agreement was entered into between the Plaintiff and the Defendants on 14.05.1988. The Second Defendant, assured the Plaintiff that he would get a formal deed of division between the other co-sharers, as there was no document relating to partition and after getting the same, he would execute the sale deed along with his mother representing the minor also. The Second Defendant also received an advance of Rs.75,000/- from the Plaintiff at the time of executing the Sale Agreement. According to the Plaintiff, even though she was ready and willing to pay he balance amount and get the sale deed executed, the Second Defendant was expressing difficulty in getting a formal deed of division between himself and other co-sharers. Therefore, he suggested for entering into a fresh agreement and accordingly a fresh agreement was executed on 09.06.1989 and the advance already received on 14.06.1988 was to be treated as advance for the agreement dated 09.06.1989. 11. According to the Plaintiff, she was always ready and willing to perform her part of the contract and the Defendants 1 to 3 have failed to obtain permanent partition of the Suit ‘A’ schedule described property as agreed. The Plaintiff was therefore not able to claim the relief of Specific Performance at the time of filling the earlier Suit and therefore, she only filed O.S. No.594 of 1995 for bare injunction and it was pending. She further contended that she came to know that the Defendants 2 and 5 to 8 have created a document called as Partition Deed in respect of ‘B’ schedule property on 14.09.1990. She further contended that she came to know that the Defendants 2 and 5 to 8 have created a document called as Partition Deed in respect of ‘B’ schedule property on 14.09.1990. Though the First Defendant was entitled to a share, he was not given any share and the Second Defendant, in collusion with the Defendants 6 to 8, has purported to have taken a share in a portion other than the one described in ‘A’ schedule property, which was originally allotted to the Defendants 1 to 4 and it was in their possession. Therefore, the said partition is invalid in law. The very Partition Deed itself is brought into existence to circumvent the Plaintiff’s legitimate right in getting the sale deed executed in respect of the property. 12. The Plaintiff would further contend that the Defendants 1 to 4 are bound to execute the sale deed in respect of the ‘A’ schedule property or in the alterative, if they execute the sale deed in respect of 3 acres allotted to them in a partition of “B” schedule property, the Court has to effect partition into metes and bounds with reference to good and bad soil by appointing an Advocate Commissioner. Therefore, in order to have a binding judgment, she impleaded Defendants 5 to 8. As per the Specific Relief Act, the relief of partition can be sought in a Suit for Specific Performance of the contract. 13. The Plaintiff would further contend that she issued a notice to the Defendants 1 to 4 to execute the sale deed in her favour. As they have refused to do so and as they have contended that the Sale Agreement dated 09.06.1989 is only a loan transaction, the suit for Specific Performance of the contract has been filed. She reiterated that she is always ready and willing to perform her part of the contract and she is even ready to deposit the balance of sale consideration as and when the Court directs her to do so. 14. The Fifth Defendant filed a Written Statement contending that the Second Defendant could have accepted that 3 acres of land in S.F. No.193/3C could be divided among the other sharers and that he would enter into a formal deed of partition. Even if there is any such partition, it would not bind the Defendants 5 to 8. 14. The Fifth Defendant filed a Written Statement contending that the Second Defendant could have accepted that 3 acres of land in S.F. No.193/3C could be divided among the other sharers and that he would enter into a formal deed of partition. Even if there is any such partition, it would not bind the Defendants 5 to 8. He would further contend that he is not aware of the alleged advance and the so-called readiness and willingness of the Plaintiff to purchase the property. As regards the execution of the second agreement dated 09.06.1989 and treating the advance amount for the new agreement, since no cash was paid on 09.06.1989 and as there is no averment in the said document, the agreement dated 09.06.1989 is invalid, besides it is not supported by consideration. The Plaintiff cannot ask for a fresh partition as she has no preferential right over item No. 1 of the suit property against any of the Defendants. He is not aware of the earlier Suit O.S. No. 254 of 1990 and the decree, if any passed in the Suit, will not bind him. Further, the Partition Deed dated 14.09.1990 is true, valid and binding on all the co-shares. Even the agreement dated 09.06.1989 is true, the Defendants 1 to 4 cannot claim any share other than the one allotted to them in the Partition Deed dated 14.09.1990 and the Plaintiff cannot claim over any other land except Survey No. 196/3. He further contended that if at all, the Plaintiff has to get any remedy, she can seek it against the Defendants 1 to 4 and over the properties allotted to them in the Partition Deed dated 14.09.1990. It was also contended that the Plaintiff has no right to ask for partition and separate possession at this stage, even if the alleged Agreement of Sale is valid and enforceable in law. The Defendants 5 to 8 are unnecessary parties to the Suit and therefore the Suit is bad for mis-joinder of parties. The Plaintiff, without seeking for setting aside the Partition Deed, has filed the present Suit and therefore it is not maintainable or sustainable in law. The Plaintiff is not entitled to the equitable remedy of Specific Performance and consequential relief of partition and separate possession. 15. The Plaintiff, without seeking for setting aside the Partition Deed, has filed the present Suit and therefore it is not maintainable or sustainable in law. The Plaintiff is not entitled to the equitable remedy of Specific Performance and consequential relief of partition and separate possession. 15. He further contended that after oral arrangement, the parties were enjoying different portions of the properties for convenient sake without partition by metes and bounds with reference to good and bad soil. At the time of partition dated 14.09.1990, they divided the properties by metes and bounds and they are enjoying their respective share. The Second Defendant’s family was allotted plot measuring 3.53 acres out of total extent of 5.68 acres in R.S. No. 193/2C and 193/3C under the Partition Deed. If at all the Plaintiff has to get any remedy, she has to work it out against the share allotted to them. It was further contended that merely because this Defendant attested the agreement without knowing the contents thereof, the Plaintiff cannot be granted the relief. He had spent Rs. 20,000/- to improve the property and in such event, if the relief sought for by the Plaintiff is granted, he would be put to irreparable loss and hardship. 16. The Sixth Defendant has filed Written Statement, which was adopted by the Defendants 7 and 8. The Sixth Defendant would contend that he did not admit the execution of the Agreement of Sale dated 14.06.1988. Any representation made by the Second Defendant about the division of the properties between himself and other co-shares is false. There is no agreement entered into between the Second Defendant and the Plaintiff and it is not having any legal effect as Defendants 1 to 4 were not entitled to the ‘A’ schedule property. The Sixth Defendant also do not admit the second agreement. As per the Partition Deed dated 14.09.1990. ‘A’ schedule properties were allotted to the share of the 8th Defendant, ‘B’ schedule property to the Second Defendant and ‘C’ schedule property to the Defendants 6 and 8. The Second Defendant was allotted lands to an extent of 3.53 acres in R.S. No. 193/2C and 193/3C, the Defendants 2 and 6 each have been allotted 1.27.15 acres of land in the said survey numbers. The Second Defendant was allotted lands to an extent of 3.53 acres in R.S. No. 193/2C and 193/3C, the Defendants 2 and 6 each have been allotted 1.27.15 acres of land in the said survey numbers. Only based on the Partition Deed, they have divided the lands among themselves and there was no oral partition as alleged, hence, the Partition Deed is valid. The Plaintiff is not entitled to the relief of Specific Performance and the claim for partition of the ‘B’ schedule property is not maintainable. The Partition Deed dated 14.09.1990 cannot be re-opened at the instance of the Plaintiff. As the Defendants 6 to 8 are not parties to the agreement, no relief of partition can be claimed by the Plaintiff against them. For the notice sent by the Plaintiff, a reply notice was sent stating that he had spent Rs. 20,000/- for levelling the land, which was allotted to him under the partition. 17. The Defendants 1 to 4 remained ex parte in the Suit. Both the Suits were jointly tried by the Court below. The Court below framed issues, evidences were let in by both sides. The Plaintiff examined herself as PW1 and three other witnesses on her side as PWs2 to 4 besides marking Exs.A1 to A13. On the side of the Defendants, the Second Defendant Nallasami, 5th Defendant Sathasivam, 8th Defendant Manoharan were examined as DWs 1 to 3 respectively and Exs.B1 to B4 were marked. The Court below, taking into consideration the pleadings of the parties, oral and documentary evidence decreed the Suit in O.S. No. 646 of 1993 directing the Defendants 1 to 4 to execute the sale deed after receipt of the balance sale consideration within a period of one month, failing which the sale would be executed by the Court. The Suit in O.S. No. 646 of 1993 was dismissed as against the Defendants 5 to 8. Similarly, the Suit in O.S. No. 594 of 1995 was also decreed as prayed for. 18. Heard all the parties concerned at considerable length. The point for consideration in these Appeal is: (i) Whether the Defendants 1 to 4, who have entered into an Agreement of Sale, Exs.A1 and A2 and have later executed the Partition Deed dated 14.09.1990 only to make the agreements impossible by allotting partition of the property to Defendants 6 to 8? Heard all the parties concerned at considerable length. The point for consideration in these Appeal is: (i) Whether the Defendants 1 to 4, who have entered into an Agreement of Sale, Exs.A1 and A2 and have later executed the Partition Deed dated 14.09.1990 only to make the agreements impossible by allotting partition of the property to Defendants 6 to 8? (ii) Whether the claim made by the Defendants 1 to 4 that Exs.A1 and A2 have been executed only as a loan transaction for borrowing Rs. 75,000/- has been proved? 19. The first Sale Agreement was dated 14.06.1998 executed in favour of Kannagi by R.Nallusamy. The agreement recites that “TAMIL” Pursuant to such agreement, Nallusamy received a sum of Rs. 75,000/- as advance on the said day. The period of agreement was one year from the date of agreement. The agreement price was fixed at Rs. 2,09,000/- per acre. The extent of the property covered in this agreement was 3 acres out of 3.20.5 hectares in Survey No. 193/3. A specific recital was made in the agreement as follows: “TAMIL” 20. Therefore, it is clear that even in the first agreement itself, it has been categorically stated that earlier oral partition was made between the parties before the Panchayatars and they have been enjoying the property separately and pursuant to that they have entered into an agreement and to show that there was an oral partition, Sadhasivam, who was a Bank Manager, was asked to sign as Attesting Witness. He also knowing fully well the contents of the agreement has signed the same as an attestor. Therefore, the said Sadhasivam cannot, later on say that he has signed the document only as a witness without knowing the contents of the document as the document very clearly recites “TAMIL”. Moreover, the Attesting Witness-Sadhasivam is not an ordinary person. He is a well educated person, employed as Bank Manager and he knows the intricacies in signing a registered document. He having signed the same, law presumes that he is fully aware of the contents of the Agreement of Sale and that he has acknowledged and accepted it and thereafter signed the same especially when specific recitals have been made that he was asked to sign and confirm, accept and acknowledge the previous oral partition. 21. He having signed the same, law presumes that he is fully aware of the contents of the Agreement of Sale and that he has acknowledged and accepted it and thereafter signed the same especially when specific recitals have been made that he was asked to sign and confirm, accept and acknowledge the previous oral partition. 21. As far as the second agreement is concerned, which was executed just before the expiry of one year period namely 09.06.1989, one Sarasammal, wife of Ramasamy Gounder, Nallasamy, son of Ramasamy Gounder, Nallusamy for himself and his minor son Chandrasekaran, minor aged 13 years and Sathishkumar, minor aged 10 years, had entered into the Agreement of Sale with Kannagi. In this agreement, it has been recited as follows: “TAMIL” 22. In this second Sale Agreement, the prior Sale Agreement has also been referred to as follows: “TAMIL” 23. The reason for execution of fresh agreement has been specifically stated that in view of the registered Partition Deed having not been made, the period has been extended by executing a new agreement. It is also stated that the vendors are in possession and enjoyment of the property pursuant to the earlier oral partition. As per the second Sale Agreement also, the amount of Rs. 75,000/- has been stated as advance and the value of the land fixed at Rs. 2,09,000/- per acres has been reiterated by stating as under: “TAMIL” 24. According to the parties to the second Agreement of Sale, the sale shall be executed within one year from the date the registered Partition Deed to be executed by the parties along with other co-sharers. The same Sadasivam, Bank Manager, has attested the second Agreement of Sale also. 25. The Plaintiff in O.S. No.254 of 1990 namely Kannagi has filed the Suit against Sarasammal, Nallasamy, Minors Chandrasekar and Sathishkumar, represented by their Guardian Nallasamy contending that originally, an agreement dated 09.06.1989 was entered into between the Defendants for sale of the properties, which they were enjoying as per the oral partition. According to the Plaintiff, the Defendants agreed to get the registered Partition Deed executed by other co-sharers and thereafter, within one year, sale will be executed. The Suit itself has been filed on the basis of the Sale Agreement dated 09.06.1999. The recitals in the agreement has been extracted above. According to the Plaintiff, the Defendants agreed to get the registered Partition Deed executed by other co-sharers and thereafter, within one year, sale will be executed. The Suit itself has been filed on the basis of the Sale Agreement dated 09.06.1999. The recitals in the agreement has been extracted above. It was contended in the Suit that even after nine months of execution of the agreement, the Defendants are showing little interest to get the Partition Deed executed, she apprehended that Defendants may encumber or alienate the suit property to third parties contrary to the agreement to defeat her right as an agreement holder and if they alienate the property, it would completely hamper her rights as an agreement holder. She had also specifically contended in the Plaint that as the Specific Performance could not be now claimed as the Partition Deed has not been effected as per the earlier agreement, the relief of Specific Performance cannot be now sought since as per the agreement, the vendor has to execute the sale deed within one year from the date of execution of the registered Partition Deed, the Suit has been filed only for a bare injunction. It was also contended that the Defendants, after having received the advance amount, are now attempting to alienate the suit property to third persons and if they are not prevented from such an attempt, it will result in multiplicity of proceedings and therefore, filing of the Suit has become necessary. This Suit was fled in the month of March 1990. Pending Suit, on 14.09.1990, Sadhasivam, attestor in both the agreements, Nallusamy, executant in the agreement, Palanisamy, Velusamy, Manoharan @ Krishnamurthy, who are brothers and cousin brothers, have entered into a registered Partition Deed. As per the recitals in the Partition Deed, they would contend that the property owned by them ancestrally and the properties, which are acquired by Nallusamy, Palanisamy, Velusamy and Manoharan @ Krishnamoorthy have been clubbed together and partitioned the property as they have been originally jointly enjoying the property and it is no more possible for them to enjoy the property jointly. As per this Partition Deed, ‘A’ schedule property shown therein was allotted to Sadasivam, ‘B’ schedule to Nallasamy, ‘C’ schedule to Palanisamy, ‘D’ schedule to Velusamy and ‘E’ Schedule was allotted to Manoharan @ Krishnamoorthy. As per this Partition Deed, ‘A’ schedule property shown therein was allotted to Sadasivam, ‘B’ schedule to Nallasamy, ‘C’ schedule to Palanisamy, ‘D’ schedule to Velusamy and ‘E’ Schedule was allotted to Manoharan @ Krishnamoorthy. As per the recitals in the Partition Deed, the partition took place as per the date of execution of the document. The property, which is the subject matter of the Suit, to an extent of 3 acres was allotted in favour of Palanisamy, Velusamy and Krishnamoorty @ Manoharan morefully set out in ‘C’, ‘D’ and ‘E’ Schedule of the Partition Deed dated 14.09.1990. 26. In O.S. No.254 of 1990, the Second Defendant Nallasamy filed Written Statement. He specifically averred that the alleged agreement dated 09.06.1989 is not an Agreement of Sale but it is only a document created for the purpose of loan transaction. According to Nallasamy, he approached the Plaintiff Kannagi for a loan of Rs.75,000/- in July 1989 and the Plaintiff, who was a professional money lender had insisted him to execute an Agreement of Sale and that she promised to return the agreement if the principle amount is paid with interest at the rate of 18% per annum. As he was in a bad financial situation, he was constrained to agree to such a course. Only because of his bad financial situation, he along with his mother executed he said Agreement of Sale and borrowed Rs.75,000/-. Therefore, it is not an Agreement of Sale and it relates to a loan transaction. It was further contended that even at the relevant time, the market value of the suit property was around Rs.5 lakhs and nobody could agree to sell the suit property at a lesser price. Further, as per the registered Partition Deed dated 14.09.1990, the suit property has fallen to the share of Palanisamy, Velusamy and Manoharan @ Krishnamoorthy of Poovampalayam. Therefore, it was contended that the sale could not be executed and the suit for Specific Performance cannot be granted. 27. It is pertinent to mention here that in O.S. No.254 of 1990, originally interim order was granted and thereafter, after filing the Written Statement, since the Defendants did not appear, the Suit was decreed ex parte. Therefore, it was contended that the sale could not be executed and the suit for Specific Performance cannot be granted. 27. It is pertinent to mention here that in O.S. No.254 of 1990, originally interim order was granted and thereafter, after filing the Written Statement, since the Defendants did not appear, the Suit was decreed ex parte. As the Plaintiff Kannagi came to know of the Partition Deed effected later, she issued a notice on 03.08.1992 in which she categorically stated that O.S. No.254 of 1990 has been decreed ex parte and she came to know from the Written Statement filed in that Suit that a Partition Deed has been effected and even after execution of the Partition Deed possession of the suit property was not handed over, hence, she intends to file a Suit for Specific Performance of the agreement. For this notice dated 03.08.1992, the Defendants issued a reply notice on 08.08.1992 through their Advocate reiterating that the alleged agreement relates only to a loan an transaction and it was not a Sale Agreement. It was also claimed that only an exparte decree has been passed in O.S. No.254 of 1990 and it is not final and therefore they are taking steps to set aside the ex parte decree. For the above said reply notice, Kannagi, Plaintiff has issued a rejoinder wherein she has brought out the Agreement of Sale between the parties and that the Defendants have agreed to execute the registered partition. Further it was stated that as Nallusamy could not get the Partition Deed executed, he sought for further time which has resulted in the second agreement being executed and the advance amount paid at the time of execution of the first agreement was agreed to be treated as advance for the second agreement. It was also stated in the rejoinder that the Partition Deed itself has been executed pending earlier Suit on 14.09.1990 and it came to the notice of the Plaintiff only on reading the Written Statement. According to Kannagi, the Partition Deed has been purportedly executed o circumvent the execution of the sale deed. In the Partition Deed, the suit property was not allotted to the share of the Defendants in the Suit wantonly and wilfully to deprive her rights whereas the suit property has been allotted to other brothers. According to Kannagi, the Partition Deed has been purportedly executed o circumvent the execution of the sale deed. In the Partition Deed, the suit property was not allotted to the share of the Defendants in the Suit wantonly and wilfully to deprive her rights whereas the suit property has been allotted to other brothers. Curiously, even in the Partition Deed, the minor children of Nalluamy having been included as a party and wantonly they executed the Partition Deed so as to allot the suit property to the share of the persons of mentioned as 6 to 8 in the notice. It was also pointed out in the rejoinder that the partition will not deprive her right and that she is always ready and willing to perform her part of the contract to get the sale deed executed in her favour. 28. According to the Plaintiff Kannagi, as the Defendants refused to comply with the recitals in the Agreement of Sale, she was constrained to file O.S. No.646 of 1993 against Sarasammal and others. The Fifth Defendant in O.S. No.646 of 1993 namely Sadasivam is the attestor in both the agreements of sale. The Suit has been filed on the basis of the second agreement and the Plaintiff claimed the following relief in the Suit: (a) Directing the Defendants to execute a sale deed in favour of the Plaintiff in respect of ‘A’ schedule property as per the terms of the Sale Agreement dated 09.06.1989; (b) or to divide the ‘B’ Schedule property by metes and bounds with reference to good and bad soil and allot 3 acres to the Defendants 1 to 4 and directing the Defendants 1 to 4 to execute the so allotted 3 acres to the Plaintiff; (c) in the alternative directing the Defendants 1 to 4 to return the earnest money with interest in a sum of Rs.1,11,000/- with subsequent interest at 12% per annum for Rs.75,000/- from the date of suit till the date of realisation. 29. In the Plaint, it has been categorically stated by the Plaintiff that she is always ready and willing to perform her part of the contract. 29. In the Plaint, it has been categorically stated by the Plaintiff that she is always ready and willing to perform her part of the contract. An alternative plea has been taken to divide the ‘B’ schedule property by metes and bounds with reference to good and soil and allot 3 acres to the Defendants 1 to 4 and directing the Defendants 1 to 4 to execute the so allotted 3 acres to the Plaintiff. In fact, after filing of the Suit on 14.07.1993, the Defendants 6 to 8 have issued a reply notice to the notice issued by the Plaintiff for Specific Performance. In the said notice, they have claimed that pursuant to the partition, they acquired possession of the property and therefore the Suit itself is not maintainable. 30. Before the Trial Court, the Plaintiff-Kannagi was examined, who, in her evidence, has stated that the second agreement was executed accepting the averments made in the first agreement, in which the Fifth Defendant has signed. The second agreement was necessitated as she could not get the registered Partition Deed. She reiterated that the agreements were executed only to purchase the property and it is not a loan transaction. In the cross-examination by the Defendants 1 to 4 or the eighth Defendant, nothing could be elicited from her. In fact, in the cross-examination of the Plaintiff by the Counsel for Defendants 1 to 4, it has been categorically stated by the Plaintiff Kannagi that “TAMIL”. 31. The Plaintiff also examined PW2-K.P. Chinnasamy, another Attesting Witness to the agreements, who has stated that he is fully aware of the previous agreement dated 14.06.1988. he has also stated that he and the Fifth Defendant have signed the agreement as attesting witnesses and the document was written by one Thangam. He also stated that only for extending the period mentioned in the first agreement, the second agreement came to be executed. He further stated that the advance paid in the first agreement was treated as advance in the second agreement. He also stated that only for extending the period mentioned in the first agreement, the second agreement came to be executed. He further stated that the advance paid in the first agreement was treated as advance in the second agreement. In the cross-examination, one point, which is very relevant was that PW2 would say that he did not see the actual advance amount being paid at the time of entering into the first agreement, but it was clearly stated in the second agreement that the advance paid at the time of entering into the first agreement was treated as advance for the subsequent agreement. 32. PW3-Ganasambandam is a document writer. He has stated that he has written Ex.A1, agreement and denied that it was a document executed for the purpose of loan. In his cross-examination, he would categorically state that “TAMIL” 33. PW4-Thangam was also examined, who is the scribe/document writer. He also reiterated that the document dated 09.06.1989 was executed to extend the period mentioned in the previous agreement; that the Second Defendant signed the second agreement for himself and his minor children and on that day no advance was paid and only the period mentioned in the earlier agreement was extended. In the cross-examination, he would categorically depose that it was suggested by the parties to write a new agreement and that is why the agreement dated 09.06.1989 was prepared instead of making an endorsement on the back of the earlier agreement. 34. Nallasamy, the Second Defendant, was examined as DW1. He would only state that on 14.06.1988, first agreement was executed when he obtained the loan. There was no Partition Deed and he was not the owner of the 3 acres of land. It was specifically agreed that if he pays the principal amount within one year, the document would be returned, but he could not return the amount and that is the reason the Plaintiff-Kannagi has requested him to execute the second agreement. Kannagi’s husband is running a firm namely “Om Sakhi Finane” and that he knows the husband of the Plaintiff. As per the Partition Deed, in 1990, he and his brothers have divided the property and that the properties have been partitioned pursuant to the family arrangement whereby the parties agreed to divide the property as per the nothings in a paper (pick of lots). As per the Partition Deed, in 1990, he and his brothers have divided the property and that the properties have been partitioned pursuant to the family arrangement whereby the parties agreed to divide the property as per the nothings in a paper (pick of lots). Therefore, at that point of time, he was always ready and willing to repay the sum of Rs.75,000/- received by him as advance with interest. He also admitted that in so far as the suit property is concerned, he had handed over the original document to the Plaintiff-Kannagi. In the cross-examination, he would say that in the property allotted to him in a Partition Deed, he had already constructed a house with well and he is enjoying the property. He also would admit in the cross-examination that the Partition Deed has been executed during the pendency of the interim order granted in O.S. No.254 of 1990, now re-numbered as O.S. No.594 of 1995. He also admitted that no reason was given for non-inclusion of his sons and mother in the Partition Deed. He also agreed that he has got money only on 09.06.1988 and no money was received on 09.06.1988 as per the recitals in the document and he has also stated so in his Written Statement. However, he has not mentioned in the Written Statement that the Plaintiff’s husband is running a financial business. In the cross-examination, he has also admitted that at the time of execution of the Agreements of Dale, the suit property was in his possession. He would categorically admit that “1987 TAMIL” 35. The Second Defendant admitted in the Written Statement regarding payment of Rs.75,000/-. In the reply notice dated 08.08.1992, Ex.A6, sent to the Plaintiff-Kannagi, it was stated that “your client insisted that my clients should execute a Sale Agreement for her to advance a loan of Rs.75,000/-. Accordingly, my clients borrowed a sum of Rs.75,000/- on 09.06.1989 and executed the notice mentioned Sale Agreement. 36. DW1/Second Defendant admits that he was in possession of the suit property during the relevant period namely at the time of execution of Exs.A1 and A2. Similarly, DW3/8th Defendant admits that prior to the Partition Deed, they were enjoying the property separately. Further, it was stated by eighth Defendant/DW3 during his cross-examination that “TAMIL”. Therefore, the eight Defendant was aware of the Sale Agreements when the Partition Deed was subsequently entered into. 37. Similarly, DW3/8th Defendant admits that prior to the Partition Deed, they were enjoying the property separately. Further, it was stated by eighth Defendant/DW3 during his cross-examination that “TAMIL”. Therefore, the eight Defendant was aware of the Sale Agreements when the Partition Deed was subsequently entered into. 37. The Fifth Defendant was examined as DW2 and he stated that he is working as Cashier in Central Bank of India. He admits that he has signed in Exs.A1 and A2, agreements of sale, but would only contend that it was executed for obtaining loan. In the cross-examination, it was admitted that when he signed the agreements of sale, the other signatures were not available. Even the recital in regard to partition was available and he has never requested to delete the same. He would also state that he never knew about the loan transaction. 38. The Eighth Defendant-Manoharan was examined as DW3. In his chief-examination, he has admitted that even before the Partition Deed, the parties have been enjoying the property separately. He would only contend that prior to Ex.B1, there is no oral partition. 39. The learned Senior Counsel for the Defendants 1 to 4 vehemently contended that the Plaintiff-Kannagi, being a financier or money lender has insisted on the Defendants to execute an Agreement of Sale, Ex.A1 dated 14.06.1988, as a condition precedent for lending amount and if the entire principal amount is paid within one year, she agreed to return the agreement. The specific case of the Defendants is that the Plaintiff is a financier, but neither in the Written Statement nor in the notice it was stated that the Plaintiff’s husband is running a financial firm. In the oral evidence, the witnesses examined on behalf of the Defendants would contend that the Plaintiff’s husband is running a financial business under the name and style of “Om Sakthi Finance”. Therefore, there is a contradiction as to whether the Plaintiff is a financier or her husband. Even other wise, if really the amount was only borrowed and it is only treated as a loan transaction, there is no necessity or need for the Defendants to execute a Sale Agreement in which, the Fifth Defendant, who is employed in a Bank and is a worldly wise person, had signed as an attesting witness. Not only the Fifth Defendant, the Defendants 1 to 4 have signed the document. Not only the Fifth Defendant, the Defendants 1 to 4 have signed the document. Further, the Fifth Defendant has made an endorsement that he has signed as attesting witness not only for the document but also to specifically prove the fact that there was an oral partition and pursuant to the oral partition, the properties are enjoyed separately. If it is a loan transaction, this kind of recital will not have come into existence. Even otherwise, the property has been clearly identified, demarcated, four boundaries have been clearly mentioned to show that the document is purported to be only an Agreement of Sale. 40. It is evident from the records the subsequent to execution of the agreement dated 14.06.1988, the Defendants could not get the Partition Deed registered therefore, the period mentioned in the first agreement dated 14.06.1988 was sought to be executed and for that purpose, the second agreement dated 09.06.1989 was executed. One lacuna was in the second agreement dated 09.06.1989, the advance stated to have been paid, but no amount was paid as such as advance at the time of entering into the second agreement. Whereas, the earlier payment made during the time of executing the first agreement was treated as advance. Even in the second agreement, the previous agreement dated 14.06.1988 has been referred to. It is also brought to the notice that the very same fifth Defendant, who attested the first agreement dated 14.06.1988 has signed as an attesting witness in the second agreement dated 09.06.1989. The reasons for not executing the sale deed is that the registered Partition Deed could not be executed. Therefore, the reasons given by the Plaintiff in the Suit is correct and it is a plausible reason. Therefore, the claim now made by the Defendants 1 to 4 as if it is a loan transaction and the agreement is invalid and unenforceable are not legally sustainable. Such a course of argument is not open to the Defendants 1 to 4 after having executed two agreements of sale in favour of the Plaintiff. Furthermore, the Partition Deed dated 14.09.1990 was executed during the pendency of the Suit in O.S. No.254 of 1990 filed by the Plaintiff-Kannagi in which interim injunction was granted restraining the Defendants from alienating or encumbering the suit property. Furthermore, the Partition Deed dated 14.09.1990 was executed during the pendency of the Suit in O.S. No.254 of 1990 filed by the Plaintiff-Kannagi in which interim injunction was granted restraining the Defendants from alienating or encumbering the suit property. It is also brought to the notice of this Court that when interim order was in force and after filing the Written Statement, the Suit was decreed ex parte and thereafter, only after notice issued by the Plaintiff informing that the Suit filed by her has been decreed ex parte, the Defendants sought to restore the Suit. 41. When we look into the Partition Deed, it has been clearly stated as follows: “TAMIL” 42. Therefore, as per the above recital, which is specifically incorporated in the Partition Deed itself, the Defendants 2, 5, 6 and 8 have consented that the Second Defendant has already executed an Agreement of Sale with one third party and they are aware of the Sale Agreement and the property which is covered under the Sale Agreement has not been allotted to the share of the Defendants 1 to 4, therefore, later on, if any problem arises on the basis of the Sale Agreement, the Second Defendant has to settle the issue with the property allotted to him in his favour. Therefore, the whole theory projected by the Second Defendant that the agreements have been executed for the purpose of a loan transaction is clearly proved to be a false one. The Partition Deed is a registered document in which certain admissions were made by the parties in respect of the very agreements of sale, which are under dispute in this case. Such admitted facts need not be proved by the Plaintiff. Therefore, it is clear that the registered partition came to be executed only to circumvent the agreements of sale entered into by the Second Defendant with the Plaintiff. That is why, wantonly and wilfully, the property, which is mentioned in the Sale Agreements, has been so divided in favour of the Defendants 7 and 8 and conveniently, even though more than 3 acres were allotted to the Defendants 1 to 4 in the very same survey number, the property, which was not originally allotted to him in the oral partition has been allotted or the property mentioned in the Sale Agreements is not allotted. Whereas, it is admitted in the cross-examination of the parties that the parties are enjoying the property as per the oral partition. Therefore, to stultify the agreements, Exs.A1 and A2, ingeniously, the Partition Deed has been created to frustrate the contract with the Plaintiff, which is highly deplorable. Therefore, the Plaintiff has proved the execution of the agreements of sale and in order to circumvent the Plaintiff’s right, the Partition Deed came to be executed during the pendency of the Suit. 43. In this connection, the learned Senior Counsel for the Defendants/Appellants relied on the decision reported in Kunjan Nair Sivaraman Nair v. Narayanan Nair and others, 2004 (1) CTC 628 for the proposition that when the earlier Suit was filed for interim injunction, cause of action for filing the Suit for Specific Performance also has arisen for the Plaintiff, therefore, the subsequent Suit for partition is not maintainable and the Suit has to be dismissed. Once the Plaintiff comes to Court for getting on existing cause of action, she must include in her Suit all claims pertaining to that cause of action. If Plaintiff gives up part of claim without leave of the Court, she cannot subsequently sue in respect of that claim based on same cause of action. The Honourable Supreme Court in that judgment held that for supporting a plea of bar under Order 2, Rule 2 of C.P.C., it must be shown that the second Suit is based on the same cause of action as in the earlier Suit and no leave was obtained to sue later. In that case, earlier suit was filed for declaration of title and injunction against the interference with possession. Subsequently, another Suit was filed for recovery of possession which is not barred by Order 2, Rule 2 of C.P.C. as cause of action for two Suits were held to be entirely different. In Prar-8, it was held as follows: “8. A mere look at the provisions shows that once the Plaintiff comes to a Court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. In Prar-8, it was held as follows: “8. A mere look at the provisions shows that once the Plaintiff comes to a Court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second Suit of the Plaintiff can be held to be barred by the same, it must be shown that the second Suit is based on the same cause of action on which the earlier Suit was based and if the cause of action is the same in both the Suits and if in the earlier Suit the Plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that Suit cannot be subsequently prayed for except with the leave of the Court. It must, therefore, be shown by the Defendants for supporting their plea of bar of Order 2, Rule 2, sub-rule (3) that the second Suit of the Plaintiff filed is based on the same cause of action on which its earlier Suit was based and that because it had not prayed for any relief and it had not obtained leave of the Court in that connection, it cannot sue for that relief in the present second Suit. A Constitution Bench of this case of Gurbux Singh v. Bhooralal in this connection has laid down as under: (AIR P. 1812, para 6) “6. A Constitution Bench of this case of Gurbux Singh v. Bhooralal in this connection has laid down as under: (AIR P. 1812, para 6) “6. In order that a plea of a bar under Order 2, Rule 2(3), Civil Procedure Code should succeed the Defendant who raises the plea must make out (1) that the second Suit was in respect of the same cause of action as that on which the previous Suit was based; (2) that in respect of that cause of action the Plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the Plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second Suit had been filed. From this analysis it would be seen that the Defendant would have to establish primarily and to start with, the precise cause of action upon which the previous Suit was filed, for unless there is identify between the cause of action on which the earlier suit was filed and that on which the claim in the later Suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a Plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the Defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C.S. No.28 of 1950 were not filed by the Appellant in the present suit as evidence in support of his plea under Order 2, Rule 2, Civil Procedure Code. The learned Trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous Suit contained in the Plaint as a matter of deduction. The learned Trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous Suit contained in the Plaint as a matter of deduction. At the stage of the Appeal the learned District Judge noticed this lacuna in the Appellant’s case and pointed out, in our opinion, rightly that without the Plaint in the previous Suit being on the record, a plea of a bar under Order 2, Rule 2, Civil Procedure Code was not maintainable.” 44. In the case on hand, the second Suit was filed after the Defendants have executed a Partition Deed during the pendency of the first Suit to circumvent the right of the Plaintiff. At the time of filing the earlier Suit, there was no registered partition and the right to seek for Specific Performance itself would arise only after the deed is executed, that too in favour of the Defendants 1 to 4 and therefore, the Plaintiff could not file a Suit for Specific Performance at all. At the time when the Plaintiff filed the earlier Suit, this cause of action was not available to her, hence, she reserved her right to file a Suit for Specific Performance and therefore, the second Suit is not hit by the provisions of Order 2, Rule 2 of C.P.C. 45. Mr. Parthasarathy, learned Senor Counsel for the Defendants/Appellants relied on the decision reported in Ganesh Shet v. Dr. C.S.G.K. Setty and others, 1998 (3) SCC 381 for the proposition that the relief of Specific Performance is discretionary and it cannot be granted merely because it is illegal but it is governed by sound judicial principles. The circumstances referred to in sub-section (2) to (4) of Section 20 in regard to exercise of discretion for granting a decree for Specific Performance should not be exceeded. Normally it is impermissible to grant relief on the basis of what emerges from the evidence – even if it is not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in Suits relating to Specific Performance. Where the Defendant denies the contract and evidence proves the contract, but different from that alleged by the Plaintiff, the Courts should refuse to exercise discretion for granting a decree for Specific Performance. Where the Defendant denies the contract and evidence proves the contract, but different from that alleged by the Plaintiff, the Courts should refuse to exercise discretion for granting a decree for Specific Performance. The learned Senior Counsel argued that on the basis of an agreement, though is styled as a Sale Agreement, but it was actually entered into pursuant to a loan transaction and that too there is a condition that the actual sale deed would be executed within one year from the date of registration of Partition Deed, it has to be held that Exs.A1 and A2 are not legally proved. Moreover, the contract was denied by the Defendants. Even if it is proved by the Plaintiff, this Court should not grant the discretionary relief of Specific Performance. 46. But the fact in this case is different. As per the admission of the Defendants, Exs.A1 and A2 came to be executed. The recitals in the Partition Deed itself very clearly states that there is a Sale Agreement and if there is any problem arising out of the right that would emanate from the Sale Agreement, the second party has to take care of the same from the property allotted to his share. Therefore, the Sale Agreements are not only proved by the Plaintiff but also admitted by the Defendants themselves in the Partition Deed. Therefore, I hold that it is a concluded contract. Once the agreements are proved, automatically, the Plaintiff is entitled for the relief of Specific Performance. Hence, the decision relied on by the learned Senior Counsel reported in Ganesh Shet v. Dr. C.S.G.K. Setty and others, 1998 (3) SCC 381 is not applicable to the facts of the case on hand. 47. The learned Senior Counsel for the Defendants/Appellants also relied on the decision of the Travanore (Cochin) High Court reported in T.V. Kochuvareed and another v. P. Mariappa Gounder and others, AIR 1954 Tra-Coc 10. In that case the Agreement of Sale of property contains certain conditions that the sale deed has to be executed within a specified time and possession has to be delivered at the time of execution of sale deed. In that case the Agreement of Sale of property contains certain conditions that the sale deed has to be executed within a specified time and possession has to be delivered at the time of execution of sale deed. A separate oral agreement to the effect that the contract was subject to the condition that the vendor was able to persuade the lessee in possession to surrender his possession within the time specified for the sale is a condition precedent for arising of obligations under the contract of sale and has not the effect of varying or contradicting the terms of the contract. Therefore, according to the Plaintiff therein, the contract is a contingent contract and once it is established that it is a contingent contract, the relief prayed for is not sustainable. 48. In the case on hand, in the agreements, Exs.A1 and A2 itself it was stated that the sale could be effected after the Partition Deed is executed and that too after a period of one year thereof. Since in this case, in the Partition Deed, the very property itself was not allotted to the share of the vendor, it was no longer possible and it has become a contingent contract. The learned Senior Counsel for the Defendants argued that at the time when there was no partition, it will not be known to the Plaintiff that the property will be allotted to the Second Defendant. Therefore, when the parties to the agreement themselves have decided to get the suit property allotted to the Second Defendant only, such a contract will only be a contingent contract. Therefore, Specific Performance cannot be granted. In this case, even in the evidence, it was stated that the property was enjoyed separately prior to the partition. Yet, for the purpose of making the documents and as per the legal requirement, the purchaser sought registration of the Partition Deed, which has to be executed between the parties in accordance with the earlier partition and the enjoyment of the property. Therefore, the facts of this case are totally different and admission made by the parties will clearly prove that the property was enjoyed separately even at the relevant point of time. 49. Mr. Krishnakumar, learned Counsel for the Plaintiff/Respondent contended that it is not a congingent contract as possession is only with the necessary parties. Therefore, the facts of this case are totally different and admission made by the parties will clearly prove that the property was enjoyed separately even at the relevant point of time. 49. Mr. Krishnakumar, learned Counsel for the Plaintiff/Respondent contended that it is not a congingent contract as possession is only with the necessary parties. There is no condition imposed and therefore, they have to enter into a registered Partition Deed and then possession has to be handed over. 50. The learned Counsel for the Plaintiff relied on the decision of the Honourable Supreme Court reported in Dalip Singh v. Mehar Singh Rathee & others, 2004 (4) CTC 236 to say that the second Suit filed by the Plaintiff is not barred as the Plaintiff did not know the Partition Deed executed among the Defendants. Immediately, she had filed the second Suit and therefore it is maintainable. In the said judgment, the Honourable Supreme Court had held that the plea that Order 23, Rule 1 of C.P.C. barred second Suit was not raised in Written Statement and no issues was framed but it was raised in First Appeal but negatived by First Appellate Court and not raised in Second Appeal. In Para No. 12 of the said judgment, the Honourable Supreme Court held that as follows: “12. …. Order 2, Rule 2 of C.P.C. envisages that a person who is entitled to more than one relief in respect of same cause of action has omitted to sue for some relief without the leave of the Court. When an objection regarding to the filing of the Suit under Order 2, Rule 2, C.P.C. is taken, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous Suit in order that it might be in a position to appreciate whether the cause of action alleged in the second Suit is identical with the one that was the subject matter of previous Suit. As the plea had not been raised in the Written Statement and an issue framed on this point, no opportunity was provided to Respondent No. 1 to lead evidence to rebut the same.” 51. As the plea had not been raised in the Written Statement and an issue framed on this point, no opportunity was provided to Respondent No. 1 to lead evidence to rebut the same.” 51. In the present case, there is no whisper made in the Written Statement regarding the legal bar, but another important factor is that the earlier Suit for injunction was decreed ex parte thereafter, at the instance of the Defendants, it was restored and both the Suits namely Suit for injunction as well as Specific Performance were tried together and common judgment was passed. In the Plaint, it was categorically stated that the cause of action for Specific Performance has not at all arisen earlier in view of the fact that as per the recitals in Exs.A1 and A2, the Defendant shall get the property, to be conveyed to the Plaintiff, by means of a partition, and thereafter, within one year from the date of execution of the partition, shall sell the property to the Plaintiff. Admittedly, the Partition Deed was not executed between the Defendants at the time when the Plaintiff filed the first Suit for bare injunction and only thereafter, on coming to know the partition of the property, the Plaintiff has come forward with the second Suit for Specific Performance. Even in the earlier Suit for bare injunction, the Plaintiff reserved her right to take necessary action seeking Specific Performance at a later point of time. Therefore, if the Defendants have raised the bar under Order 2, Rule 2 of C.P.C. in the Written Statement, the Plaintiff could have let in evidence to disprove the same. When that was not raised by the Defendants, it is not open for the Defendants now to raise this before this Court. 52. In the decision of this Court reported in Chokkammal and three others v. K. Balraj, 2008 (5) CTC 690, it was held by a learned Single Judge that a person of full age and understanding who subscribe their signature to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In Para No. 7, it was held thus: “7. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In Para No. 7, it was held thus: “7. As a measure of sound reasoning, it could be stated that the persons of full age and understanding who subscribe their signature to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In this case, there is nothing to suspect that the document could have been brought about under vitiating circumstances. The Trial Court has found that on a wholesale consideration of evidence that Ex.A3 was true and it has also considered the evidence of witnesses to the transaction viz., the scribe under Ex.A1 and also one of the witnesses Chellappa, who is PW2. The said Chellappa is the witness in Ex.A3. I, therefore, confirm the finding recorded by the Trial Court that Ex.A1 and A3 are true and the Defendants have obligated themselves under this document to execute the sale in favour of the Plaintiff.” 53. In this case, the Fifth Defendant, who was employed in a Bank has attested both Exs.A1 and A2 and therefore, he cannot now contend that he had signed the Sale Agreements without knowing its content. 54. In Babu Lal v. Hazari Lal Kishorei Lal and others, AIR 1982 SC 818 , the Honourable Supreme Court held that even in a Suit for Specific Performance, the Plaintiff can seek for appropriate reliefs namely for possession or partition or for separate possession. These reliefs can be sought for by the notwithstanding anything contained in the Code of Civil Procedure to the contrary. Sub-section (2) of Section 22 of Specific Relief Act, however, specifically provides that these reliefs cannot be granted by the Court unless they have not been expressly claimed by the Plaintiff in the Suit. In Para Nos. 12, 13 and 14, it was held as follows: “12. The Section enacts that a person in a Suit for Specific Performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for Specific Performance. In Para Nos. 12, 13 and 14, it was held as follows: “12. The Section enacts that a person in a Suit for Specific Performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for Specific Performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-section (2) of this Section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the Plaintiff in the Suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the Plaintiff unless it has been specifically pleaded by the Plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the Plaintiff has not specifically claimed these reliefs in his Plaint, in the initial stages of the Suit, the Court shall permit the Plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the Plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of Suits and that the Plaintiff may get appropriate relief without being hampered by procedural complications. 13. The expression in sub-section (1) Section 22 “in an appropriate case” is very significant. The Plaintiff may ask for the relief of possession or partition or separate possession “in an appropriate case”. As pointed out earlier, in view of Order 2, Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for Specific Performance and partition and possession could be combined in one Suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the Plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for Specific Performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one Suit. Similarly, a case may be visualised where after the contract between the Plaintiff and the Defendant the property passed in possession of a third person. A mere relief for Specific Performance of the contract of sale may not entitle the Plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed or such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for Specific Performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55(1) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits. 14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession viz. where the property agreed to be conveyed is jointly held by the Defendant with other persons. In such a case the Plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the Defendant. It is in such cases that a relief for possession must be specifically pleaded.” 55. In this case, the Plaintiff has rightly claimed in O.S. No.646 of 1993 the relief (b) to the effect to divide the ‘B’ Schedule property by metes and bounds with reference to good and bad soil and allot 3 acres to the Defendants 1 to 4 and directing the Defendants 1 to 4 to execute the so allotted 3 acres to the Plaintiff. In other words, the Plaintiff has rightly raised all the pleas and claimed all the relief as stated by the Honourable Supreme Court in the decision mentioned above. 56. In other words, the Plaintiff has rightly raised all the pleas and claimed all the relief as stated by the Honourable Supreme Court in the decision mentioned above. 56. A feeble attempt was made by the learned Senior Counsel for the Petitioner that in view of the property being allotted to third parties, namely Defendants 6 to 8, the relief of Specific Performance cannot be granted as held by the Honourable Supreme Court in Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal (dead) by his LRs. and others, AIR 1971 SC 1238 . In the said judgment, Honourable Supreme Court held in Para Nos.8 and 9 as follows: “8. Coming to the last point, the High Court has held that the Appellants were disentitled to a decree for Specific Performance because a statement was made at the Bar that during the pendency of the Appeal they had executed the decree of the Trial Court and an amount of Rs.75,00 had been deposited by the Respondents pursuant to the execution proceedings. It is true that the Appellant could not accept satisfaction of the decree of the Trial Court and yet prefer an Appeal against that decree. That may well have brought them within the principle that when the Plaintiff has elected to proceed in some other manner than for Specific Performance he cannot ask for the latter relief. This is what Scrutton, L.J., said in Dexters Limited v. Hill Crest Oil Company, Bradford Ltd. at p. 358: “So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad.” It was further observed: “It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right.” This illustrates the rue that a party cannot approbate and reprobate at the same time. These propositions are so well-known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the Appellants had, by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the Trial Court as correct. These propositions are so well-known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the Appellants had, by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the Trial Court as correct. It has already been mentioned at a previous stage that after the decision of the Trial Court, the Appellants had even applied on March 31, 1958 for an injunction restraining the Respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this Application that the Plaintiffs would be preferring an Appeal but it would take time to secure certified copies. An Appeal was in fact preferred and seriously pressed before the High Court on the relief relating to Specific Performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the Appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for Specific Performance. 9. It is common ground that the plot in dispute has been transferred by the Respondents and therefore the proper form of the decree would be the same as indicated at p. 369 in Lala Durga Prasad v. Lala Deep Chand viz. “to direct Specific Performance of the contract between the vendor and the Plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the Plaintiff. He does not join in any special covenants made between the Plaintiff and his vendor; all he does is to pass on his title to the Plaintiff.” We order accordingly. The decree of the Courts below is hereby set aside and the Appeal is allowed wit costs in this Court and the High Court.” 57. In P.C. Varghese v. Devaki Amma Balambika Devi and others, AIR 2006 SC 145 it was held in Para Nos. 34 and 37 as follows: “34. The submission of Mr. The decree of the Courts below is hereby set aside and the Appeal is allowed wit costs in this Court and the High Court.” 57. In P.C. Varghese v. Devaki Amma Balambika Devi and others, AIR 2006 SC 145 it was held in Para Nos. 34 and 37 as follows: “34. The submission of Mr. Reddy to the effect that the learned Trial Judge committed a serious error in granting a decree for partition along with a decree for Specific Performance of contract need not detain us long as in view of Section 22(1)(a) of the Act a decree for partition and separate possession of the property can be granted in addition to a decree for Specific Performance of contract. As in this case, the Appellant herein in view of amended prayer ‘C’ relinquished his claim in respect of the property belonging to the minor Respondent 4, he also prayed for a decree for partition and such a prayer having been allowed, no exception thereto can be taken. In any event, the said question has not been raised by the Respondents before the High Court at all. Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the Plaintiff may claim a decree for possession and/or partition in a Suit for Specific Performance. Even though strictly speaking, the right to possession accrues only when a Suit for Specific Performance is decreed, indisputably such a decree for possession and/or partition is prayed for in anticipation of the grant of prayer for Specific Performance of contract. (See Babu Lal v. Hazari Lal Kishori Lal.) 37. Before parting with this case, however, we may observe that the manner in which the decree has been passed by the learned Trial Court is open to question inasmuch as a relief in terms of Section 22 of the Specific Relief Act being incidental or ancillary to the main relief of Specific Performance of contract and, furthermore, being in addition thereto, ordinarily, a proceeding for grant of a final decree for partition should be initiated after the sale deed in terms of the decree for Specific Performance of contract is executed and registered and not vice versa.” 58. In this case, the contention raised by the learned Senior Counsel for the Defendants has to be negatived because, as held by me, the Partition Deed itself was created only to circumvent the very Sale Agreements entered into with the Plaintiff, which was also admitted in the evidence by the parties to the Suit. 59. In Shanmughasundaram and others v. Diravia Nadar (dead) by LRs. and another, 2005 (2) CTC 148 (SC): 2005 (10) SCC 728 , the Honourable Supreme Court held in para-30 as follows: “30. Section 12 of the Specific Relief Act, in our considered opinion, would be of no assistance in the situation obtaining here. In the absence of sisters being parties to the agreement, the vendee can at best obtain undivided interest of two brothers in the property. Section 12 of the Specific Relief Act cannot be invoked by the vendee to obtain sale of undivided share of the two brothers with a right to force partition on the sisters who were not parties to the Agreement of Sale. Such a relief under Section 12 cannot be obtained by a vendee, on purchase of an undivided share of the property of some of the co-owners, against other co-owners who were not parties to the Sale Agreement.” 60. In this case, the Plaintiff has impleaded all the parties in the Partition Deed as parties to the Suit and they are proper and necessary parties for complete adjudication of the Plaintiff’s claim. 61. In Surinder Singh v. Kapoor Singh (D) through LRs. and others, 2005 (2) CTC 801, in Para No.9, it was held as follows: “9. Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for Specific Performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorised by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the Plaintiff claiming the relief unless the Defendant establishes prejudice.” 62. In P.C. Varghese v. Devaki Amma Balambika Devi and others, AIR 2006 SC 145 , the Honourable Supreme Court held that a decree for partition and separate possession of the property can be granted in addition to a decree for Specific Performance. In fact, it was observed by the Honourable Supreme Court that in order to avoid multiplicity of proceedings, the Plaintiff can claim for decree for possession and for partition in a Suit for Specific Performance in terms of Section 22 of the Specific Relief Act. It was further held that right o possession accrue only when Suit for Specific Performance is decreed, indisputably, but a decree for possession and or partition, can be prayed for in anticipation of the grant of prayer for Specific Performance of contract. 63. Hence, I hold that the agreements of sale, Exs.A1 and A2, are valid, legal and the Partition Dee dated 14.09.1990 has been created for the purpose of circumventing the agreements of sale and it will not be an embargo for the Plaintiff to get the relief in the Suit. Moreover, the Plaintiff, under law, has roped in all the persons, who are signataries to the Partition Deed and proved that they are aware of Exs.A1 and A2, Sale Agreements entered into by the Second Defendant with her. 64. In the light of the aforesaid discussion, the points for consideration are answered in favour of the Plaintiff and against the Defendants. The decree and judgment of the Court below are confirmed and the Appeals are liable to be dismissed and accordingly all the Appeals are dismissed as devoid of merits. No costs.