{"id":246833,"date":"2003-07-23T00:00:00","date_gmt":"2003-07-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/duraikannu-padayachi-vs-meera-on-23-july-2003"},"modified":"2014-12-08T13:20:58","modified_gmt":"2014-12-08T07:50:58","slug":"duraikannu-padayachi-vs-meera-on-23-july-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/duraikannu-padayachi-vs-meera-on-23-july-2003","title":{"rendered":"Duraikannu Padayachi vs Meera on 23 July, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Duraikannu Padayachi vs Meera on 23 July, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED:  23.07.2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU\n\nSecond Appeal No.700 of 1993\n\nDuraikannu Padayachi           .....   Appellant\n\n-Vs-\n\nMeera                          .....  Respondent\n\n        Appeal against the judgment and decree dated 25.09.1992 in A.S.No.19 4\nof 1992 before the Additional Sub  Court,  cuddalore,  preferred  against  the\njudgment  and  decree dated 16.03.1992 in O.S.No.11 of 1989 on the file of the\nAdditional District Munsif's Court, Cuddalore.\n\n!For Appellant          :  Mrs.Hema Sampath\n\n^For Respondent         :  Mr.R.Yashod Vardhan\n\n:JUDGMENT\n<\/pre>\n
        The defendant has preferred this Second Appeal as against  the  decree
\nfor  specific performance and possession of suit property, passed by the lower
\nappellate Court, on reversal of the dismissal of the suit in the trial Court.\n<\/p>\n
2.The averments found in the plaint are as follows:\n<\/p>\n
        The suit property originally belonged to Chandraraju pillai who  on  0
\n9.05.1984  had executed a will in a sound disposing state of mind and the said
\nwill was duly executed and attested and it was his last will, as per the terms
\nof which the plaintiff was given the  suit  property  and  another  item  with
\nabsolute right.\n<\/p>\n
        Chandraraju pillai  died  and the Will took effect.  Even prior to the
\nwill, he had sold the property to the defendant  by  a  registered  sale  deed
\ndated 30.12.1983 for Rs.1,500\/- and on the same day Chandraraju pillai and the
\ndefendant  entered into an agreement of reconveyance as per the terms of which
\nthe former was entitled to get reconveyance within five years  there  from  on
\npayment of  Rs.1,500\/-.    In  the  mean  time as Chandraraju pillai died, the
\nlegatee under the  Will,  the  plaintiff  is  entitled  to  get  reconveyance.
\nExpressing  her  ready  and  willingness,  the  plaintiff  issued  a notice on
\n02.08.1988, calling upon the defendant to execute a sale deed.  The  same  was
\nserved on  the  defendant  on  03.08.1988.   As defendant failed, the suit was
\nfiled for specific performance and possession.\n<\/p>\n
        3.  The defendant filed  the  written  statement  with  the  following
\naverments:\n<\/p>\n
        True it is that suit property orginally belonged to Chandraraju pillai
\nand he  had  sold the same to the defendant on 30.12.1983 for Rs.1,5 00\/-.  It
\nis untrue to say that there was an agreement  of  reconveyance  and  the  said
\nagreement is a rank forgery.  The plaintiff is incompetent to file the suit as
\nshe is  not  the  daughter  of  Chandraraju  pillai.    The alleged Will dated
\n09.05.1984 is also a forgery.  It was not properly executed and duly attested.
\nThe original Will is not in the custody of the defendant.   So,  the  suit  is
\nliable to be dismissed.\n<\/p>\n
        4.   On  the  above pleadings, the following issues were framed by the
\ntrial Court:\n<\/p>\n
(i) Whether the Will dated 09.04.1984 was true and legally sustainable?\n<\/p>\n
(ii) Whether the agreement of reconveyance is legally sustainable?\n<\/p>\n
(iii) Whether the plaintiff is entitled for the relief asked for?\n<\/p>\n
        5.  The plaintiff and her mother were respectively examined  as  P.W.1
\nand P.W.2.  The scribe and the attestor to the Will were examined as P.W.3 and
\nP.W.7.  The attestor and scribe of the agreement of reconveyance were examined
\nas P.W.4 and P.W.5.  P.W.6 is the attestor to another document.  The defendant
\nwas examined  as  D.W.1.    Exs.A.1  to  A.8  were  marked  on the side of the
\nplaintiff.  Exs.B.1 which is the original of Ex.A.8 was marked on the side  of
\nthe defendant.\n<\/p>\n
        6.   On consideration of the entire oral and documentary evidence, the
\nleanred trial  Judge  has  come  to  the  conclusion  that  the  agreement  of
\nreconveyance  executed by the defendant on 30.12.1983 in favour of Chandraraju
\nPillai was legally proved and that the Will  dated  09.05.19  84  was  not  so
\nproved.   The  learned  trial Judge has dismissed the suit contending that the
\nplaintiff had no right of reconveyance.  The lower appellate Court  has  found
\nthat  both  the Will and the agreement of reconveyance were legally proved and
\nthat the paintiff was entitled for right of reconveyance and  so  decreed  the
\nsuit, against which the second appeal lies.\n<\/p>\n
        7.   During the time of admission, the following substantial questions
\nof law were framed:\n<\/p>\n
(i) Whether in law the courts below are right in finding that an  unregistered
\nalleged  re-conveyance  agreement could alter the terms of the registered sale
\ndeed, thus flouting Section 92(4) of the Evidence Act?\n<\/p>\n
(ii) Whether in law the lower appellate court is right  in  holding  that  the
\nwill  alleged  to  have  been  executed  by the plaintiff’s father is true and
\nvalid, when the original will has not been filed and when  the  will  was  not
\nproved as required under law?\n<\/p>\n
(iii)  Whether  in  law the lower appellate Court is right in finding that the
\nplaintiff could maintain the suit when even as per the alleged will, she would
\ninherit the property only after her mother’s lifetime?\n<\/p>\n
        8.  Admittedly, the suit property measuring an extent of 33  cents  in
\nR.S.No.375\/1  situate  in  Kodhandaramapuram  of  Cuddalore  Taluk  originally
\nbelonged to the deceased Chandraraju pillai  who  had  admittedly  executed  a
\nregistered  sale  deed  through Ex.B.1 dated 30.12.1983 to the defendant for a
\nsum of Rs.1500\/-.  Even according to the defendant who was examined as  D.W.1,
\nChandraraju died  five  years  back  which  takes  us  to  1987.   Thangam was
\nadmittedly his first wife through whom a son Sadagopan was born.    Admittedly
\nThangam  also died later; whether she predeceased Chandraraju or died later is
\nnot made known.    Plaintiff  claims  to  be  one  of  the  two  daughters  of
\nChandraraju born through his second wife Sarasu examined as P.W.2.\n<\/p>\n
        9.   According  to  Sarasu  (PW.2),  it was 30 years back, she married
\nChandraraju and the marriage ceremony had taken place  at  Nataraj  Temple  of
\nChidambaram;  that  both  lived  in  Kattusalai as husband and wife and during
\ntheir long wedlock Meera, the plaintiff and one  Padmavathy  were  born;  that
\nPadmavathy is  now  dead  leaving a daughter.  The defendant in paragraph-4 of
\nhis written statement had contended that the plaintiff was not the daughter of
\nChandraraju pillai; that the later’s wife was a different person  and  through
\nher,  he  has  got  other Legal Representatives; and that the maternity of the
\nplaintiff was not disputed.  There is  no  plea  or  counter  plea  about  the
\nmarrital status  of  Sarasu.    Only in the course of evidence Sarasu as P.W.2
\nclaimed that 30 years back, there was marriage between her and Chandraraju  at
\nChidambaram Nataraja  temple.    The  defendant  while examined as D.W.1, felt
\nignorance as to whether Meera was born to Chandraraju Pillai.  Even P.  W.4  a
\nclose  relative  of  Chandraraju  and  P.W.7,  have deposed that plaintiff and
\nPadmavathy were born to Chandraraju Pillai through  Sarasu.    Their  specific
\nevidence was that there was no marriage between Sarasu and Chandraraju Pillai.
\nAlthough  there  is  no  evidence  to  prove  the  conduct of marriage between
\nSundararaj and sarasu, there is ample evidence to show their long cohabitation
\nat Kattusalai.   The  defendant  himself  has  admitted  that  they  lived  in
\nKattusalai for  a  long  time.  The defendant in the course of evidence stated
\nthat he did not know whether the plaintiff was  born  to  Chandraraju  Pillai,<\/p>\n
whereby  the  plea  in  paragraph-4  of  denial  of paternity of plaintiff was
\ndiluted.  Thus, it is found by long cohabitation with  Sarasu,  Plaintiff  and
\nPadmavathy were born to Chandraraju.  This gives Sarasu status of second wife.\n<\/p>\n
        10.   The  plaintiff had filed the suit for specific performance based
\nupon an agreement of reconveyance through Ex.A.5 said to have been executed by
\nthe defendant on the same day, namely 30.12.1983, when he purchased  the  suit
\nproperty from  the  original owner Chandraraju.  Since the execution of Ex.A.5
\nwas specifically denied in the written statement, it is onerous on the part of
\nthe plaintiff to prove the  same;  for  which  she  had  examined  the  scribe
\nParamaswara  iyer  as  P.W.5 and one attestor Narayanasamy as P.W.4, since the
\nother attestor Ranganatha Pillai expired.\n<\/p>\n
        11.  A careful perusal of both the above witnesses would  go  to  show
\nthe execution  of  Ex.A.5.  Although it is an unregistered agreement, both the
\ncourts below factually found the true  and  valid  execution  thereto.    Both
\nEx.B.1  and  Ex.A.5  were  written  on the same day by the same scribe and was
\nattested by the same individuals and the price was  also  found  the  same  in
\nboth.   P.W.5  had  emphatically  contended  that he saw the defendant signing
\nEx.A.5; of course, P.W.4 the attestor  did  not  contend  about  this  aspect.
\nSince  the  agreement  is  not a document legally required to be attested, the
\nproposition that the evidence of scribe cannot be considered for  the  purpose
\nof attestation  becomes  inapplicable  here.    Again  the question that while
\nEx.B.1 was registered, why not the reconveyance of the same through Ex.A.5 was
\nnot registered may arise.  The answer is that while a sale is required by  law
\nto be  registered,  an agreement is not required to be registered.  Therefore,
\nparties might have contemplated not to register Ex.A.5  and  if  an  otherwise
\nproved document which is not legally required to be registered may not fail on
\nthe ground  of lack of registration.  It is therefore, we find that Ex.A.5 was
\ntrue and validly executed.\n<\/p>\n
        12.  The plaintiff  had  based  her  right  of  reconveyance  of  suit
\nproperty on the will dated 09.05.1984 under which she claims the suit property
\nand another  item  was bequeathed.  True it is that the Will includes the suit
\nproperty and another 83 cents in some other survey number of the same  village
\nbequeathing  an  extent  of acre 1.16 cents ( including the suit property) not
\nonly to the plaintiff but also to her sister; and that too after the demise of
\nSarasu to whom the life estate was created.  No right of reconveyance of  suit
\nproperty was included therein.  The trial Court has dismissed the suit only on
\nthe  ground  that Meera got the right in the suit property under the Will only
\nafter the death of her mother, besides the fact that the Will was not  proved.
\nThe  Lower  appellate  Court  while  validating the Will has patently erred in
\nappreciating the evidence of P.W.7, one of the attestors to the said Will.  In
\norder to prove the said Will, atleast  one  attestor  has  to  be  necessarily
\nexamined.  P.W.7 is one such attestor.  A careful perusal of his evidence will
\ngo  to  show  that  what  he  had spoken to was only about Ex.A.1 which is the
\nregistration copy of the Will which apparently  may  not  contain  the  actual
\nsignature of  the  testator  or  attestor.    The  lower  appellate  court has
\ncommitted an error by construing that what P.W.7 has  deposed  was  by  seeing
\nEx.A.2,  the  xerox  copy  of  the  Will  which may contain the replica of the
\nsignatures of the testator and attestor.  Since P.W.7 had  only  spoken  about
\nthe Will by seeing the registration copy thereto namely Ex.A.1, there could be
\nno identity of signatures made.\n<\/p>\n
        13.   Regarding  attestation,  what  is  mentioned in Section 3 of the
\nTransfer of Property Act is as follows:\n<\/p>\n
        “Attested” in relation to an instrument, means and shall be deemed  to
\nhave  meant  attested  by  two  or  more  witnesses  each of whom has seen the
\nexecutant sign or affix his mark to the instrument, or  has  seen  some  other
\nperson  sign  the  instrument  in  the  presence  and  by the direction of the
\nexcutant, or has received from the executant a personal acknowlegment  of  his
\nsingature  or mark, or of the signature of such other person, and each of whom
\nhas signed the instrument in the presence of the executant; but it  shall  not
\nbe  necessary  that more than one of such witnesses shall have been present at
\nthe time and no particular form of attestation shall be necessary.”\n<\/p>\n
        14.  Reliance was placed by the defendant  in  Govindan  Chettiar  Vs.
\nAkilandam alias  Seethalakshmi and 24 others reported in (1997 (3) L.  W.673),
\nwherein the following was observed:\n<\/p>\n
“I have already said that the  attesting  witnesses  in  this  case  have  not
\nidentified the  signautre  of the deceased, nor the attestation by them.  They
\nonly give a general statement about the procedure of attestation.    When  the
\nsignatures  of the testator and the attestors are not idendified, it cannot be
\nsaid that the Will is properly proved.  In 1996-II-M.L.J 596  (Suguna  Bai  v.
\nMuniammal<\/a>  @  Dhanalakshmi  and  others), I had occasion to consider a similar
\nquestion.  In Paragraph 18 of the judgment, I have held thus:\n<\/p>\n
        “Even though D.W.5 speaks that he is an attestor when he was examined,
\nI do not find that the Will is shown to him and the signatures of the  various
\nattestors or the  testator are identified by him.  ………  He must identify
\nthe signature as seen in the document.”\n<\/p>\n
        Applying the above principle of law as there was no  identifiation  of
\nsignature made, there was no proper proof of the execution of the Will.\n<\/p>\n
        15.   The  non-production  of  the  original  of  the Will also may go
\nagainst the proof of the same along with  other  facts  in  this  case.    The
\npleadings  in the plaint was as if the defendant is witholding the original of
\nthe will.  P.W.2 also said so in her evidence.    But  the  plaintiff  in  her
\nevidence, had deposed as if the original Will was available with the mortgagee
\nRamalingam,  perhaps referring to the vendee under Ex.A.3, who before purchase
\nhas got some mortgage right over the property mentioned in the Will  excepting
\nthe suit  item.  Thus, there is inconsistency in the case of the plaintiff and
\nvaried versions as to the availability of the original will.  No  attempt  was
\ntaken to  have  summoned  anyone  concerned.    It is not also the case of the
\nplaintiff that they have lost the will.\n<\/p>\n
        16.  Reliance was placed in Arulmighu Vedaranyeswaraswami  Devasthanam
\nVs.   Vedaramyam  reported  in  (2000(1)  CTC  534)  by  the defendant and the
\nfollowing portion was pointed out therein:\n<\/p>\n
        “Under  Section  65  of  the  Evidence  Act,  secondary  evidence   is
\npermissble only when the conditions set out in the said section are satisfied.
\nIt  is  not  the plaintiffs’ case that the original is in possession of person
\nagainst whom, the document is sought to be  proved,  or  that  it  is  in  the
\npossession of  a  person  out  of  reach.    Nor it is sated that it is in the
\npossession of the person who is not subject to the process of the Court.    It
\nis also not stated that it is in the possession of a person who is not legally
\nbound  to  produce  it,  and even after the notice mentioned under Section 66,
\nsuch person failed to produce it.  It is also not the case that  the  original
\nhas been  destroyed or lost.  Nor it is the evidence of the plaintiff that the
\nnon production is on account of any other reason  not  arising  from  his  own
\ndefault or  neglect.    When  the  conditions  laid  down in Section 65 of the
\nEvidence Act are not satisfied, in the face of  the  evidence  of  P.W.1,  the
\ncourts  below  erred in accepting the secondary evidence of the said document.
\nMoreover, the courts below applied the presumption arising under Section 90 of
\nthe Act.  The presumption will arise only when  it  is  produced  from  proper
\ncustody.   As  to  the  proper  custody,  the  plaintiffs have not adduced any
\nevidence.  The evidence adduced does not advance the case  of  the  plaintiffs
\nwith regard  to proper custody.  Further, what is produced is only a certified
\ncopy.  The presumption arising under section 90 of the Act cannot  be  applied
\nto a  certified  copy.    Therefore, both the courts erred in holding that the
\nwill has been proved and that it is binding upon the defendants……”\n<\/p>\n
        Thus, the non production of the original of the Will affects the  case
\nof the plaintiff.\n<\/p>\n
        17.   That  apart,  the  testator  after having executed the sale deed
\nunder Ex.B.1 dated 30.12.1983 to the defendant in respect of the suit property
\nhad  subsequently  become  incompetent  to  bequeath  the  same  property   on
\n09.05.1984 through  Ex.A.1 Will in favour of the plaintiff.  Thus, for want of
\ncapacity also the Will suffers in respect of the suit property.  Regarding the<\/p>\n
other properties dealt with under the Will, it was  not  proved  by  effective
\nexamination of  attestor and also by production of the original Will.  For the
\nreasons mentioned supra, the Will is found not proved.\n<\/p>\n
        18.  After eschewing the Will as not proved, what is remaining is  the
\nadmitted  execution  of  Ex.B.1  and  the finding that the execution of A.5 as
\ntrue.  Thus, Chandraraju had a right of reconveyance over the  suit  property.
\nAs the Will did not contain the right of reconveyance of the suit property and
\nalso  as  the  Will  itself was found unproved, the right that had flown under
\nEx.A.5 to Chandraraj will devolve only by intestate method.   In  that  event,
\nthere were by then two wives, two daughters and one son each entitled to 1\/5th
\nshare.  Whether the right of reconveyance is divisible as above or indivisible
\nlike a mortgage right is to be seen.  Plaintiff has preferred to file the suit
\nby  herself  within  the  period  of  five  years stipulated under Ex.A.5, the
\nagreement of reconveyance power to have been executed by the  defendant.    To
\nthe  above  question of indivisibility of the jointly interested promisees who
\nhad inherited the right of reconveyance from the original sole promisee, Court
\nhave consistently held only in the affirmative.\n<\/p>\n
        19.  The learned counsel for the plaintiff had drawn the attention  of
\nthis court to Section 15 of the Speficic Relief Act which reads as follows:\n<\/p>\n
        “15.  Who  may  obtain  specific  performance:    Except  as otherwise
\nprovided by this Chapter, the  specific  performance  of  a  contract  may  be
\nobtained by–\n<\/p>\n
        (a) any party thereto;\n<\/p>\n
        (b)  the  representative  in  interest  or the principal, of any party
\nthereto;\n<\/p>\n
        20.  Reliance was placed by the plaintiff in Radhabai Vs.   Parwatibai
\nreported in (AIR 1970 Bombay 275).  In that case one Doma had filed a suit for
\nspecific  performance  of  an  agreement of sale entered into by the defendant
\nwith him.  The defendant on 07.05.1965 entered into an  agreement  to  sell  a
\nhouse  in  Circle  No.4\/6  at  Nagpur  to  the  original  plaintiff  Doma  and
\naccordingly the defendant had executed an Isarchitti on the same  date.    The
\nIsarchitti  recites  that  the  defendant had received a sum of Rs.500 as part
\npayment of the purchase price of Rs.1 0,750, and that the sale deed was to  be
\nexecuted within four months from the date of the agreement.  Doma filed a suit
\non   23.09.1965  asking  for  specific  performance  of  the  agreement  dated
\n07.05.1965.  Doma died on the same day after the suit was  filed  and  leaving
\nbehind his widow Gaurabai and his married daughter Parwatibai.  After the suit
\nwas  filed on 23.09.1965, when it was fixed for further orders on 28.09 .1965,
\nParwatibai filed an application under Order 22 Rule 3 CPC,  stating  that  she
\nwas  the  sole surviving heir and legal representative of her deceased father,
\nthe original plaintiff, and that she was entitled to be made a party in  place
\nof the  deceased  plaintiff, and that application was allowed.  On 24.08.1966,
\nthe defendant filed an application under Order 14, Rule 1 CPC,  alleging  that
\nthe  deceased  Doma  had already left behind his widow Gaurabai and latter was
\nnot brought on record, Parwathibai alone was not  competent  to  maintain  the
\nsuit.   In  reply,  Parwathibai stated that the widow Gaurabai did not want to
\nclaim any share in the property in dispute.  Gaurabai also filed an  affidavit
\nto that effect.  Thereupon the preliminary issue was framed to the effect that
\nwhether  the  plaintiff,  the  daughter  of  late  Doma had no locus standi to
\ncontinue the suit as she was not the only heir of Doma.  The issue  was  found
\nin favour of the plaintiff.\n<\/p>\n
        21.   On  appeal  to the High Court, it was contended that Doma having
\nleft two legal representatives, the daughter alone was  entitled  to  continue
\nthe suit  originally  filed  by  the  deceased  Doma.    For this proposition,
\nreliance was placed upon (i) ILR 1941 Nagpur 615, and (ii) AIR  1960  Culcutta\n<\/p>\n
187.   By  distinguishing these two cases, it was held in the above cited case
\nlaw in Radhabai Vs.  Parwatibai (AIR 1970 Bombay  275),  that  by  a  combined
\nreading  of  Section 15 of Specific Relief Act, 1963 and Order 22, Rule 3 CPC,
\nthat since Gaurabai on her  own  affidavit  disclaimed  all  interest  in  the
\ntransaction  between  the  defendant  and the deceased Doma and it was evident
\nthat Doma himself had intended to purchase a suit house  for  the  benefit  of
\nParwatibai,  the  objection  regarding  the  absence  of  the widow as a legal
\nrepresentative on record was considered purely a technical  objection  without
\nsubstance  and  it  was  overrulled; thus disallowing the case putforth by the
\ndefendant that in the absence of widow of Doma, the suit  cannot  proceed  and
\nmust be taken to have abated as a whole.\n<\/p>\n
        22.   Unlike  the  above cited case, in this case, the provision under
\nOrder 22, Rule 3 CPC will not come into picture here, because the present suit
\nwas not filed by the  original  vendor  with  right  of  reconveyance,  namely
\nMr.Chandraraju.   He  died  even  prior  to  the filing of the suit and on his
\ndeath, by way of testamentory succession, the plaintiff herself had  preferred
\nthe suit.    Since  I  found  that the Will was not proved and that it did not
\ninclude the right of reconveyance which right the testator  had,  there  could
\nonly be  intestate  succession  regarding  the right of reconveyance.  In that
\nevent, all the legal heirs of deceased Chandraraju should  have  been  arrayed
\natleast  as  defendants,  if  they  dissented to get them added as plaintiffs.
\nAmong the jointly interested legal heirs of the deceased  sole  promisee,  one
\nonly  cannot  maintain  a  suit  without  impleading  the  others  at least as
\ndefendants.\n<\/p>\n
        23.  Girdhar Vs.  Motilal Champelal reported in (ILR 1941 Nagpur  615)
\n= (AIR  1941  Nag  (5)  was  a  case  where the suit was a mortgage suit.  The
\nplaintiff therein had obtained through an assignee the mortgagee’ s  right  by
\npurchase.   It  was in conjunction with two persons Premraj and Dhanraj and as
\nPremraj died, the estate went to Dhanraj and Gulabchand.  In  that  case,  the
\nplaintiff’s  pleader refused to join these two persons as parties and the suit
\nwas dismissed  for  non-joinder  of  parties  holding  that  a  morgage  being
\nindivisible, the suit based on a mortgage must be dismissed in its entirety if
\nall  the parties entitled to a share in the money due on the mortgage were not
\nimpleaded.\n<\/p>\n
        24.  The facts of the case in Smt.  Katip  Bibi  Vs.    Fakir  chandra
\nGhosh  reported  in  (AIR  1960 Culcutta 187), is that there was a contract of
\nreconveyance entered into by the predecessor in interest of defendants 1 to  3
\nin  favour  of Rostam Ali who was the original vendor of the same property and
\nthe said agreement was to reconvey the property either to Rostam Ali or to his
\nheirs or legal representatives.  On the death of Rostam Ali, only one  of  the
\nheirs being her daughter brought the suit claiming specific performance.  Both
\nthe  lower courts dismissd the suit finding that the agreement of reconveyance
\nbeing to the effect that the reconveyance was to be made to the vendor  or  to
\nhis  heirs  and  to his representatives, the entire parties or the legal heirs
\nand not only one of them entitled to bring the suit for  specific  performance
\non the  death  of  the original vendor.  It was held in the second appeal that
\nwhen there were several joint promisees and espicially when some of them  were
\nnot  shown  to  have  joined  as  plaintiffs,  the  dismissal  of the suit was
\ninevitable.  While discussing this aspect, it was mentioned  in  Radhabai  Vs.
\nParwatibai  reported  in  AIR  1970  Bombay 275, that if there was material on
\nrecord which would indicate that persons who had been joined as defendants had
\nrefused to join as plaintiffs, it might  not  have  necessarily  involved  the
\ndismissal of  the  suit.    From this, it is evident that all the heirs should
\nhave been brought on record atleast as defendants if they have dissented to be
\nadded as plaintiffs.\n<\/p>\n
        25.  “The Allahabad High Court in Sheomurat Ram v Savitri (MEHROTA, J)
\nAIR 1977 All 322 has taken the view that “while it is necessary that  all  the
\nparties  should  be  before the Court so that it may be in a position to grant
\nthe necessary relief, it is not necessary that the parties should  be  arrayed
\non the  side  of  the  plaintiff.  Some of them can be put in the array of the
\ndefendants if they refuse to join as co-plaintiffs.   If  this  were  not  the
\ncorrect  position,  it  would  be  open  to  one or the other of several legal
\nrepresentatives to defeat the claims of the remaining legal representatives to
\nseek relief against the promisor.  Under Or.1, r.10, CPC the Court can  always
\ntranspose the parties”.\n<\/p>\n
        “The  learned  Judge also observed that the Court should not therefore
\ninsist on evidence being produced to substantiate that  those  who  have  been
\njoined  as  co-defendants  had categorically refused to join as co-plaintiffs.
\nFurther, joint interest can arise in  various  circumstances.    For  example,
\nthere can be joint promisees at the inception of the contract.  Joint interest
\ncan  also  arise  on account of the death of a sole promisee who leaves behind
\nseveral legal representatives to survive him and  they  can  be  described  as
\njointly interested in the claima to which their predecessor-in-interest as the
\nsole promisee  was  entitled.    “The  view  of  the  Calcutta  High Court is,
\ntherefore, directly opposed to Amina Bibi vs Abdul  Kader  Saheb<\/a>(25  Mad  26);
\nAbdul  Shaker Sahib vs Abdul Rahiman Sahib (AIR<\/a> 1923 Mad 284); Jagdeo Singh vs
\nBishambhar (AIR 1937 NAG 186) and Monghibai vs Cooverji Umersey (AIR 193 9  PC\n<\/p>\n
170)”.\n<\/p>\n
        26.   The  above  proposition  was  found at Page 107of Goyle’s Law of
\nSpecific Performance Third Edition (Eastern Law House).\n<\/p>\n
        27.  Therefore, it becomes imperative on the part of all the heirs  of
\nChandraraju  to  have  jointly  filed  the  suit  for  getting  the  right  of
\nreconveyance exercised in their favour, as it has not been  done  and  as  the
\nWill was also found not proved, the suit has to fail.\n<\/p>\n
        28.   In  the  result,  the  second  appeal is allowed and the suit is
\ndismissed.  No costs.\n<\/p>\n
Index:Yes
\nWeb site:  Yes
\nsr
\nTo\n<\/p>\n
1.  The Additional Sub Court, Cuddalore,\n<\/p>\n
2.  The Additional District Munsif’s Court, Cuddalore.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Duraikannu Padayachi vs Meera on 23 July, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2003 CORAM THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Second Appeal No.700 of 1993 Duraikannu Padayachi ….. Appellant -Vs- Meera ….. Respondent Appeal against the judgment and decree dated 25.09.1992 in A.S.No.19 4 of 1992 before the Additional […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-246833","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDuraikannu Padayachi vs Meera on 23 July, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/duraikannu-padayachi-vs-meera-on-23-july-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Duraikannu Padayachi vs Meera on 23 July, 2003 - 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