IMPORTANT CASE LAWS - Madras High Court

in the connected Criminal case and if that be so, it was the bounden duty of the Plaintiff to apply for a certified copy of the
same and produce it before the Civil Court and get it marked and that will be treated as a secondary evidence. But, in this
case, that was not done so. However, the Plaintiff would place heavy reliance on such Ex.A1 and the First Appellate Court’s
judgment itself is based on such Ex.A1, which is ex facie and prima facie and inadmissible piece of evidence.
2011 (2) CTC 727
Navaneethakrishnan and Ors
vs
S.A. Subramania Raja
Specific Relief Act, 1963 (47 of 1963), Section 12(3) – Specific Performance Suit – Decreed by Trial Court
and confirmed in Appeal – Contention that suit property is ancestral – Appellants -1 & 2 alone executed Sale
Agreement – In agreement, no purpose has been stated for which property was agreed to be sold – Property was
not sold for any family necessity – Co-owners are not parties to Agreement of Sale – Plaintiff is not entitled to
decree for Specific Performance in respect of whole of suit property – Plaintiff is entitled to claim Specific
Performance of 1/3 share of suit property regarding which Appellants-1 & 2 had executed Sale Agreement – Second
Appeal partly allowed.
Facts:
Suit for Specific Performance was decreed by the Trial Court and confirmed in Appeal. However, the High Court
allowed the Second Appeal filed by the Defendants in part by holding that the Plaintiff will be entitled to claim Specific
Performance of only 1/3 share of the suit property in view of the provisions of Section 13(3) of the Specific Relief Act, 1963,
since the Sale Agreement will bind only the share of Appellants 1 & 2.
Held: According to me, the share owned by Appellants 2 and 3 and their mother Avudaithayammal viz., 1/3 share in total
in the suit property forms a considerable part of the whole and therefore, the Respondent in entitled to obtain decree of
specific performance by paying the agreed price reduced by the consideration for the part which is left unperformed. In
other words, if the Respondent is prepared to pay 1/3 of the sale consideration, he is entitled to get the relief of specific
performance in respect of 1/3 share in the suit property. As a matter of fact, in the judgment reported in 1993 (1) LW 599
cited supra, the same principle has been upheld and the decree was modified. The Honourable Supreme Court in the
judgment. A. Abdul Rashid Khan (Dead) and Others v. P.A.K.A. Shahul Hamid and Others, 2000(10) SCC 636, and in the
judgment Manzoor Ahmed Magray v. Ghulam Hassan Aram and Others, 1999(7) SCC 703, held that where any property is
held jointly and once and party to the contract has agreed to sell such joint property, the agreement, then, even if the other
co-sharer has not joined, at lest to the extent of his share, the party of the contract is bound to execute the Sale Deed. The
same principle was reiterated in Kammana Sambamurthy v. Kalipatnapu Atchutamma, 2011 (1) MWN (Civil) 99 (SC) : 2011
(1) MLJ 404(SC). The other judgments relied upon by the learned Counsel for the Appellants are in respect of a contract
where the remaining part which left unperformed forms part of a considerable portion and the parties can execute sale in
respect of only a fraction of share and in such circumstances, it was held that the Agreement of Sale is not entitled to the
specific performance.
2011 (2) CTC 763
Nagarajuna Oil Corporation Ltd., Cuddalore
vs
R. Revathi W/o. Ravikumar
Code of Civil Procedure, 1908 (5 of 1908), Order 14, Rule 2 – Preliminary issue – Issue of valuation and
jurisdiction is a mixed question of fact and law – When an Application is filed after evidence was recorded, it can be
construed only as Application under Order 14, Rule 2 – Courts should not resort to try issue as preliminary issue –
It has to be tried along with other issues – Civil Revision Petition dismissed.
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