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2012 DIGILAW 3655 (MAD)

P. M. Vatsla v. P. Balasubramaniam

2012-08-22

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the common judgment and decrees dated 29.11.2007 passed by the VI Additional Judge, City Civil Court, Chennai, in O.S.Nos.10837 of 1996 and 5923 of 1997 respectively, these two appeals are focussed. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two appeals would run thus: (a) Vatsala the appellant in both the appeals filed the suit O.S.No.5923 of 1997, seeking the following reliefs: "(a) For execution and registration of deed of sale by the defendant in respect of property bearing Door No.28, Akbarabad 1st Street, Kodambakkam, Madras 24 which is morefully described in the schedule hereunder free from all encumbrances against the payment of the balance of consideration of Rs.3,50,000/-by the plaintiff in default direct the officers of the court to execute and register the sale deed; (b) For deposit of title deeds of the property by the defendants; and (c) For costs." (extracted as such) based on the suit agreement to sell dated 22.06.1990, which was alleged to have emerged between Vatsala as the purchaser and the admitted original owner, namely Saradambal in respect of the suit property. (b) Subsequently, the said Saradambal died; whereupon Vatsala while filing the suit, arrayed D.K.Janakiraman/D1, who was alive at that relevant time, as executor of the Will purported to have been executed by Vatsala and also R.Balasubramaniam/D2, who was purported to be the first agreement holder, but as per the plaintiff, he was not so. (c) Pending litigation before the trial Court, D1 died leaving behind his L.Rs. D3 to D9. (d) The said Janakiraman/D1 and Balasubramaniam/D2 filed separately the written statements resisting the suit, mainly contending that the agreement which purported to have emerged between Balasubramaniam on the one hand as purchaser and the admitted owner Saradambal on the other hand on 22.06.1990, was a genuine one and the alleged agreement to sell emerged between Vatsala and Saradambal on 28.03.1991 was a fabricated one. Whereupon the trial Court framed the issues. Whereupon the trial Court framed the issues. (e) Pending the aforesaid suit, the said Balasubramaniam filed O.S.No.10837 of 1996 seeking the following reliefs: "(a) For directing the defendants 3 to 9 to execute the sale deed in favour of the plaintiff in respect of the property bearing Door No.28, Akbarabad 1st Street, Kodambakkam, Madras 600 024 in terms of the agreement of sale dated 29.6.1990; and (b) For costs." (extracted as such) based on the purported agreement to sell, which emerged between Balasubramaniam as the purchaser and the admitted owner Saradambal as the seller, citing Janakiraman/D1 as the executor of the alleged Will executed by the deceased Saradambal. (f) The said Vatsala, who was the plaintiff in O.S.No.5923 of 1997 was arrayed as D2. (g) Consequent upon the death of Janakiraman, his L.Rs. D3 to D9 were added. (h) Janakiraman and Vatsala separately filed the written statements. Janakiraman would take up the plea that the suit agreement which purported to have emerged between Balasubramaniam and the deceased Saradambal was a genuine one; whereas, D2/Vatsala disputed the said agreement to sell, but contended that the agreement to sell purported to have emerged between herself and deceased Saradambal was a genuine one. (i) Whereupon, issues were framed. (j) Joint trial was conducted in respect of the two suits. On the side of the plaintiff, Balasubramaniam examined himself as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendants, D.W.1/Guruswamy and D.W.2/Balaji were examined and Exs.B1 to B12 were marked. (k) Ultimately, the trial Court decreed the suit granting specific performance in favour of Balasubramanian the plaintiff in O.S.No.10837 of 1996 and dismissed the suit of Vatsala in O.S.No.5923 of 1997. 4. Being aggrieved by and dissatisfied with the said common judgment and decrees passed by the trial Court, these two appeals have been focussed more or less on the same set of grounds. 5. Heard both sides to some extent, whereupon this Court thought fit to raise some querries which got itself crystalised in the form of the following points for consideration: (1) Whether the parties to the lis as well as the lower Court were justified in impleading the L.Rs. of Janakiraman/D1 in both the suits as D3 to D9, without taking steps to implead the proper person to act as executor or the administrator as the case may be in respect of the Will executed by Saradambal? of Janakiraman/D1 in both the suits as D3 to D9, without taking steps to implead the proper person to act as executor or the administrator as the case may be in respect of the Will executed by Saradambal? (2) Whether there is any perversity or illegality in the judgment and decrees passed by the trial Court? 6. The learned counsel for Balasubramanian would bring it to the notice of this Court the memo filed on behalf of Balasubramaniam in O.S.10837 of 1996 before the trial Court, the relevant portion of it is extracted hereunder for ready reference: "..... During the pendency of the suit the first defendant died and his legal representatives are brought on record as defendants 3 to 9. Late D.K.Janakiraman applied for Probate of the will which included other properties. It is at that point of time some one entered Caveat and therefore the Probate proceeding was converted as TOS 23/1994. In view of the pendency of TOS 23/1994 in which the suit property is also the subject matter the above suit be adjourned by six weeks to enable the plaintiff to get the favourable orders from the High Court. The abovesaid facts are true." (extracted as such) 7. The learned counsel in all fairness would submit that he attempted to guide the trial Court by pointing out that the proper person to be impleaded consequent upon the death of Janakiraman the executor appointed in the Will by the testator, was the person who would be appointed by the Court concerned, so to say, the probate Court either under the nomenclature executor or administrator or under some other name. But according to him, the trial Court simply proceeded to decree the suit of Balasubramaniam and dismissed the suit of Vatsala. However, he would hasten to add that dismissal of the suit of Vatsala requires no interference as Vatsala had no prima facie case at all to place before the Court. In addition to that the learned Counsel also would try to canvass the case of Balasubramaniam that he had a good case for specific performance and considering the merit of his case alone, the Court decreed the specific performance in his favour. However, Vatsala had no merit in her case and wherefore already the Court dismissed it. 8. In addition to that the learned Counsel also would try to canvass the case of Balasubramaniam that he had a good case for specific performance and considering the merit of his case alone, the Court decreed the specific performance in his favour. However, Vatsala had no merit in her case and wherefore already the Court dismissed it. 8. Per contra, the learned counsel for Vatsala would advance his arguments, which could pithily and precisely be set out thus: The lower Court was not justified in decreeing the suit of Balasubramaniam in O.S.No.10837 of 1996 and that too impleading D3 to D9 as the L.Rs. of the deceased D1/Janakiraman the executor appointed by the testator in her Will. 9. As such, in response to the querry raised by this Court, both sides in unison would agree on the point that consequent upon the death of Janakiraman, the testator appointed executor under the Will, the proper person should have been cited as the defendant in the suit and without that the proceedings got vitiated. It is also not in dispute that during the pendency of both the suits, O.P. for getting the probate was pending on the original side of this Court and it appears subsequently, that O.P. was converted into T.O.S. in view of the intervention of the so called interested persons in the said proceedings.. Both sides without any contradiction between themselves, in unison would submit that still TOS is pending. In such a case, the Court seized of TOS has got the competence either by interim order or by final order, appoint as to who would deal with the properties of Saradambal and such a person alone would be competent to figure as a defendant in both the suits, in view of Janakiraman/D1 in both the suits having died pending litigation. The lower Court instead of blindly impleading the L.Rs. The lower Court instead of blindly impleading the L.Rs. of D1, as D3 to D9 in both the suits should have waited for such a course to be adopted by the interested persons, but in paragraph No.25 simply observed as though the suit could be proceeded further, because the plaintiffs in both the suits were not claiming any right under the Will, which in my opinion is totally perverse and tangent, warranting interference and accordingly it is quite obvious and axiomatic in addition to it being an elephant in the room that the common judgment and decrees passed by the Court below should necessarily be set aside and both the suits are remitted back to the trial Court for taking steps on the line set out supra. 10. The learned counsel for Balasubramaniam and the learned counsel for vatsala, would make an extempore submission that in view of the matter having been remanded back to the lower Court, a time limit may be fixed for disposal. It is quite obvious that appropriate orders should emerge in TOS and thereafter, alone in both the suits, there could be any progress. Hence the parties interested are expected too take suitable steps in that regard and get suitable orders as expeditiously as possible. The purpose of remanding the matter is to get impleaded the proper person as defendant and to proceed with the matter by taking additional evidence if any. Both the parties shall appear before the trial Court on 14.09.2012. Accordingly, these appeals are disposed of. However, there shall be no order as to costs.