Madras High Court

R.Ramu vs H.Basheeria Bivi on 14 July, 2025

Author:
Sathi Kumar Sukumara Kurup

Bench:
Sathi Kumar Sukumara Kurup

A.S.Nos.555 of 2022, 445 & 446 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.07.2025

CORAM:

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Appeal Suit Nos.555 of 2022, 445 and 446 of 2023
and
C.M.P.No.20928 of 2022 and 15843 of 2023

A.S.No.555 of 2022

R.Ramu ... Appellant

Versus

1. H.Basheeria Bivi
2. H.Farida Begam
3. N.Noorul Hyne
4. H.Habibur Rahman
5. T.Rabiathul Arabia
6. H.Sadiq Basha
7. Nazeer Ahamed ... Respondents

[Respondents 1, 4 & 6 are represented by their Power Agent, the fifth
Respondent herein]
[The 7th Respondent set ex parte before the trial Court. Hence notice may be
dispensed with]

A.S.No.445 of 2023

R.Ramu ... Appellant

Versus

1. H.Basheeria Bivi
2. H.Farida Begam
3. N.Noorul Hyne

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4. H.Habibur Rahman
5. T.Rabiathul Arabia
6. H.Sadiq Basha
7. Nazeer Ahamed ... Respondents

A.S.No.446 of 2023

Ramu ... Appellant

Versus

Nazeer Ahamed ... Respondent

Prayer in A.S.No.555 of 2022:- Appeal Suit is filed under Section 96 of Civil
Procedure Code against the fair and final order dated 28.04.2022 passed in
I.A.No.2 of 2018 in O.S.No.20 of 2010 by the learned I Additional District and
Sessions Judge, Cuddalore.

Prayer in A.S.No.445 of 2023:- Appeal Suit is filed under Section 96 of Civil
Procedure Code against Judgment and decree dated 29.04.2017 passed in
O.S.No.20 of 2010 by the learned I Additional District and Sessions Judge,
Cuddalore.

Prayer in A.S.No.446 of 2023:- Appeal Suit is filed under Section 96 of Civil
Procedure Code against Judgment and decree dated 29.04.2017 passed in
O.S.No.19 of 2015 by the learned I Additional District and Sessions Judge,
Cuddalore.

For Appellants : Mr. R. Muralidharan

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in all the Appeals
For Respondents 1 to 6 : Mr. R. Rajavelavan
in A.S.No.555 of 2022 and
A.S.No.445 of 2023

For Respondents 7 : Ex parte
in A.S.No.555 of 2022 and
A.S.No.445 of 2023

For Respondent in
A.S.No.446 of 2023 : No appearance (Unclaimed)

COMMON JUDGMENT

Appeal in A.S.No.555 of 2022 is filed to set aside the fair and final order

dated 28.04.2022 passed in I.A.No.2 of 2018 in O.S.No.20 of 2010 by the

learned I Additional District and Sessions Judge, Cuddalore.

2. Appeal in A.S.No.445 of 2023 is filed to set aside the judgment

and decree dated 29.04.2017 passed in O.S.No.20 of 2010 by the learned I

Additional District and Sessions Judge, Cuddalore.

3. Appeal in A.S.No.446 of 2023 is filed to set aside the judgment

and decree dated 29.04.2017 passed in O.S.No.19 of 2015 by the learned I

Additional District and Sessions Judge, Cuddalore.

4. The plaint averments in O.S.No.20 of 2010 are briefly as follows:-

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4.1. The suit properties are situated in Mulligrampattu village near

Nellikuppam in Cuddalore District. The Plaintiffs 1 to 6 and the Defendant-1

are the legal heirs of K.M.Hanifa. The suit properties were originally

purchased by K.M.Hanifa through a registered sale deed dated 07.04.1969 for

valuable consideration and he was in possession and enjoyment of the

properties till his death. The revenue records – patta, chitta and adangal are in

the name of K.M.Hanifa. K.M.Hanifa died intestate on 21.01.1997 leaving

behind him, his wife/first Plaintiff, the sons and daughters/Plaintiff 2 to 6 and

the first Defendant as legal heirs. While so, the Plaintiffs came to know that

the second Defendant had instituted a suit in O.S.No.34 of 2009 against the

first Defendant as though the first Defendant had entered into a sale agreement

deed with the second Defendant to sell the suit properties to the second

Defendant. The suit in O.S.No. 34 of 2009 was alleged to have filed seeking

relief of specific performance of contract for sale against the first Defendant by

the second Defendant. The Plaintiffs 1 to 6 are not parties to the said sale

agreement deed. The alleged sale agreement deed will not bind the Plaintiffs 1

to 6. The second Defendant attempted to interfere with the possession of the

Plaintiffs. Therefore, the Plaintiffs were forced to file the suit in O.S.No. 252

of 2009 seeking declaration that the suit properties belong to the Plaintiffs and

the first Defendant and also the Plaintiffs had filed the suit in O.S.No.20 of

2010 seeking partition. The first Plaintiff/wife of K.M.Hanifa is entitled to 1/8

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share, sons of K.M.Hanifa are entitled to 2/3rd shares and the daughters are

entitled to 1/3 share. Therefore, the Plaintiffs are collectively entitled to 58/72

shares. The first Defendant is entitled to 14/72 share. Therefore, the Plaintiffs

1 to 6 seeking preliminary decree for partition of their 58/72 shares. The first

Defendant remains ex parte in the suit.

5. The brief averments in the written statement filed by the second

Defendant are as follows:

5.1. The suite preferred by the Plaintiffs is not maintainable and

therefore, the suit is to be dismissed. The second Defendant denied the claim

made by the Plaintiffs. The second Defendant had instituted the suit in

O.S.No.34 of 2009 against the first Defendant seeking specific performance of

contract for sale of the property. On coming to know of the pendency of the

suit in O.S.No.34 of 2009, the Plaintiffs have filed the suit in O.S.No.20 of

2010 to create complications. The suit properties belong to K.M.Hanifa. After

the death of K.M.Hanifa, the Plaintiffs 1 to 6 and the first Defendant,who are

the legal heirs of K.M.Hanifa, are entitled to share in the property. The

daughters of K.M.Hanifa were married off and they are living with their

husbands. The fourth Plaintiff, son of K.M.Hanifa, is living abroad. The first

Defendant is taking care of the properties on behalf of the family of the

deceased K.M.Hanifa. The first Defendant had executed a sale agreement deed

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dated 17.07.1997 with this second Defendant. The first Defendant also agreed

to execute the sale deed on return of his brother from abroad and also

undertake to execute the sale deed along with other legal heirs. Subsequently,

he had entered into sale agreement deed on 15.03.1999 agreeing to execute the

sale deed along with other legal heirs of K.M.Hanifa. The Defendant-1 did not

execute the sale deed as per his undertaking in the sale agreement deed dated

15.03.1999. Therefore, he had executed a sale agreement deed dated

11.10.2004 and also a fresh sale agreement deed dated 06.12.2006. He had not

executed the sale deed as per his undertaking. Therefore, the second Defendant

had instituted the suit in O.S.No.34 of 2009 seeking specific performance of

contract for sale of the property. To create multiplicity of proceedings, the

Plaintiffs 1 to 6 had filed the suit in O.S.No.20 of 2010 seeking partition

without exhausting the remedy in the suit in O.S.No.34 of 2009 filed by the

second Defendant against the first Defendant. This Court cannot consider the

granting relief of partition to the Plaintiff. There is no cause of action for

instituting the suit. The suit is not maintainable and is to be dismissed.

6. Based on the pleadings in the plaint and in the written statement,

the learned I Additional District and Sessions Judge, Cuddalore, had framed

the following issues:

(i) Whether the suit properties are the joint family

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properties of the Plaintiffs and the first Defendant?

(ii) Whether the suit as framed is maintainable?

(iii) Whether the Plaintiffs 1 to 6 are entitled to claim 58/72
share in the suit property?

(iv) Whether the Plaintiffs are entitled to the relief of
partition?

(v) To what other reliefs the Plaintiffs are entitled to?

7. Originally the suit was filed as O.S.No. 34 of 2009 by the second

Defendant in O.S.No.20 of 2010 against the first Defendant in O.S.No. 20 of

2010 on the file of the learned Sub Judge, Panruti which was re-numbered as

O.S.No.19 of 2015 on transfer to the learned I Additional District and Sessions

Judge, Cuddalore.

8. The plaint averments in O.S.No.19 of 2015 are briefly as follows:

8.1. On 06.12.2006 the Plaintiff entered into sale agreement with the

Defendant for execution of the sale deed for the suit property agreeing to

execute the sale deed for Rs.2,50,000/-. On the date of agreement,

Rs.2,30,000/- was paid by the Plaintiff, for the balance of sale consideration of

Rs.20,000/-, the Defendant agreed to execute sale deed within the stipulated

time. Since the Plaintiff was ready and willing to perform his part of the

contract for payment of Rs.20,000/- and the Defendant did not come forward to

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execute the sale deed within the stipulated period, the Plaintiff was forced to

file the suit for specific performance against the Defendant. If the Defendant

failed to execute the sale deed, the Court shall execute the sale in favour of the

Plaintiff. The Plaintiff had already paid Rs.2,30,000/- on the date of sale

agreement deed. The Defendant agreed to execute sale deed along with other

legal heirs of K.M.Hanifa. As the Defendant did not come forward to execute

the sale deed, the Plaintiff had issued legal notice dated 25.06.2008 calling

upon the Defendant to execute the sale deed. On receipt of the said notice, the

Defendant had disputed the claim of the Plaintiff and sent reply with vexatious

contents. Therefore, the suit had been filed by the Plaintiff seeking the relief of

specific performance of contract for sale of the property. The suit is to be

decreed as prayed for.

9. The contents of the written statement filed by the Defendant are

briefly as follows:

9.1. The suit as framed is not maintainable. The Defendant disputed

the claim of the Plaintiff. The Defendant has no intention to encumber the

properties. The sale agreement is a fraudulent deed. The Defendant had not

received any amount from the Plaintiff. The suit property was originally

belonged to the father of the Defendant K.M.Hanifa. He purchased the

property in the year 1997 and was in enjoyment of the same. After the death of

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K.M.Hanifa, the suit properties were enjoyed by the legal heirs of K.M.Hanifa.

The claim of the Plaintiff that the Defendant claiming to be the head of the

joint family is not true. In Mohammedan Law, there is no concept of joint

family. Also the Plaintiff did not know the wherewithal to purchase the

property. The suit property is worth about Rs.25,00,000/- as on the date of

filling of the suit. The suit property is in enjoyment of the legal heirs of

K.M.Hanifa. The alleged sale agreement deed is a self-serving document

created by the Plaintiff. The Plaintiff had obtained the signature of the

Defendant in a blank sheet of paper and had subsequently created alleged sale

agreement deed. The suit is filed with an evil intention to grab the property of

K.M.Hanifa. The Defendant has a share in the suit property along with the

Plaintiffs 1 to 6 in O.S.No.20 of 2010. The Plaintiff is aware of the same. Still

he had filed the suit seeking specific performance of contract for sale which is

not maintainable.

10. Based on the pleadings in the plaint and the written statement of

the Defendant, the following issues were framed by the learned I Additional

District and Sessions Judge, Cuddalore:-

(i) Whether the Plaintiff is entitled to the relief of
specific performance of contract for sale?

(ii) To what relief the Plaintiff is entitled to?

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11. Since the properties in both the suits are one and the same, both

the suits were taken up for joint trial. The Defendants 1 and 2 in O.S.No.20 of

2010 are the Plaintiff and Defendant in O.S.No.19 of 2015.

12. Based on the Tr.O.P.No.29 of 2014, the learned Principal District

and Sessions Judge, had withdrawn the suit in O.S.No.34 of 2009 from the file

of the learned Sub Judge, Panruti to the file of the learned I Additional District

and Sessions Judge, Cuddalore and re-numbered as O.S.No. 19 of 2015. The

suit filed by the legal heirs of K.M.Hanifa in O.S.No. 20 of 2010 and the suit

filed in O.S.No.19 of 2015 are taken up together for joint trial.

13. During trial, the Plaintiff Ramu in O.S.No. 19 of 2015 was

examined as P.W-1 and the attesting witness to the sale agreement deed

S.Sherfuddin was examined as P.W-2. The Documents relied on by the

Plaintiff was marked as Ex.A-1 to Ex.A-7. Ex.A-1 is the sale agreement deed

dated 06.12.2006. Ex.A-2 is the legal notice issued on the Plaintiff dated

25.06.2008 calling upon the Defendant to execute the sale deed. Ex.A-3 is the

reply notice sent by the Nazeer Ahamed/Defendant to Plaintiff. Ex.A-4 is the

earlier sale agreement dated 17.07.1997. Ex.A-5 is the earlier sale agreement

entered into between the Plaintiff and Defendant dated 15.03.1999. Ex.A-6 is

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the sale agreement dated 11.10.2004 between the Plaintiff and Defendant.

Ex.A-7 is the copy of the plaint in O.S.No.252 of 2009 on the file of the

learned Principal District Munsif, Panruti.

14. The 6th Plaintiff in O.S.No.20 of 2010 Sadiq Basha was examined

as D.W-1 in O.S.No.19 of 2015 and the documents relied by the 6th Plaintiff in

O.S.No.20 of 2010 were marked as Ex.B-1 to Ex.B-4. Ex.B-1 is the sale deed

executed by V.Ganapathy in favour of K.M.Hanifa, dated 07.04.1969. Ex.B-2

is the kist receipt dated 07.01.2010 for the fasli 1419 in the name of

K.M.Hanifa. Ex.B-3 is the legal heirship certificate of K.M.Hanifa. Ex.B-4 is

the Power of Attorney Deed executed in favour of the 6th Plaintiff by the other

legal heirs of K.M.Hanifa.

15. On appreciation of evidence, the learned I Additional District and

Sessions Judge, Cuddalore, by common judgement dated 29.04.2017 had

dismissed the suit of the Plaintiff in O.S.No.19 of 2015 thereby refusing to

grant the relief of specific performance and instead, granted the alternate relief

of refund of advance amount of Rs.2,30,000/- in favour of the Plaintiff in

O.S.No.19 of 2015. The suit in O.S.No. 20 of 2010 filed by the legal heirs of

K.M.Hanifa was decreed thereby granting preliminary decree for partition of

58/72 shares for the Plaintiffs.

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16. Aggrieved, the second Defendant in O.S.No. 20 of 2010 had

preferred the Appeal in A.S.No.445 of 2023 against the grant of preliminary

decree. Also the Plaintiff in O.S.No.19 of 2015 had preferred Appeal in

A.S.No.446 of 2023 seeking to set aside the judgment and decree dated

29.04.2017 passed in O.S.No.19 of 2015. Also, the second Defendant in

O.S.No.20 of 2010 had preferred Appeal in A.S.No.555 of 2022 seeking to set

aside the final decree dated 28.04.2017 passed in I.A.No.2 of 2018 in

O.S.No.20 of 2010 by the learned I Additional District and Sessions Judge,

Cuddalore.

17. The suit in O.S.No.252 of 2009 filed by the Plaintiffs in

O.S.No.20 of 2010 as Plaintiffs before the learned Principal District Munsif,

Panruti was not withdrawn or transferred to the file of the leaned I Additional

District and Sessions Judge, Cuddalore for trial along with the suit in

O.S.No.20 of 2010 and O.S.No.19 of 2015. Therefore, this Court is

constrained to dispose of the Appeal in A.S.No.445 and 446 of 2023 and 555

of 2022.

18. The learned Counsel for the Appellant submitted that the suit in

O.S.No.20 of 2010 was filed by the Plaintiffs 1 to 6 against Defendant-1 and

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Defendant-2. The Plaintiffs in O.S.No.20 of 2010 and the Defendant-1/Nazeer

Ahamed are the legal heirs of K.M.Hanifa. The Plaintiffs 1 to 6 had filed the

suit in O.S.No.20 of 2010 on the file of the learned I Additional District and

Sessions Judge, Cuddalore, seeking the relief of partition of the property left

intestate by their father K.M.Hanifa, seeking each one share for the daughters

and wife of K.M.Hanifa and two shares for each of his sons. The Plaintiff-1 is

the wife, Plaintiffs-2, 3 and 5 are the daughters of K.M.Hanifa and Plaintiffs 4

and 6 and Defendant-1 are the sons of K.M.Hanifa.

19. Earlier, the Defendant-2 in O.S.No.20 of 2010 had filed suit in

O.S.No.19 of 2015 against the Defendant-1 in O.S.No.20 of 2010. The suit in

O.S.No.19 of 2015 was filed by the Plaintiff Ramu against the Defendant

Nazeer Ahamed S/o. K.M.Hanifa seeking the relief of specific performance of

contract for sale of the property. As per the plaint averments in O.S.No.19 of

2015, the suit schedule properties were the self-acquired properties of

K.M.Hanifa. He died intestate. The suit properties were maintained by the

elder son of K.M.Hanifa, Nazeer Ahamed on behalf of the joint family of

K.M.Hanifa. He had entered into sale agreement on behalf of the joint family

of K.M.Hanifa with the Plaintiff, Ramu.

20. As per the sale agreement, the sale price was fixed at

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Rs.2,50,000/-. Nazeer Ahamed had received Rs.2,30,000/- on the date of the

sale agreement deed and agreed to execute the sale deed after accepting the

balance of sale consideration but had not executed the sale deed even though,

the Plaintiff Ramu was ready and willing to perform his part of the contract.

Since the suit properties in both the suits were the same, both the suits were

tried together and common judgment was delivered. Only after the institution

of O.S.No.19 of 2015 which was in fact instituted earlier as O.S.No.34 of 2009

on the file of the learned Sub Judge, Panruti, was withdrawn and transferred to

the file of the learned I Additional District and Sessions Judge, Cuddalore and

re-numbered as O.S.No.19 of 2015. On trial, connected with O.S.No.20 of

2010, had given cause of action for filing the suit for partition among the legal

heirs of K.M.Hanifa stating that their brother Nazeer Ahamed had entered into

sale agreement with Ramu, the Plaintiff in O.S.No.34 of 2009. The Plaintiff in

O.S.No.19 of 2015 was examined as P.W-1. In his evidence, he had marked

documents Ex.A-1 to Ex.A-7. Examination in chief of Plaintiff Ramu was filed

as Affidavit.

21. The learned Counsel for the Defendant/Nazeer Ahamed in

O.S.No.19 of 2015 did not cross examine the Plaintiff. One Sherfuddin who

was the witness to the sale agreement deed was examined as P.W-2. In the

evidence of Plaintiff Ramu, the documents were marked as Ex.A-1 to Ex.A-7.

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Ex.A-1 is the sale agreement deed dated 06.12.2006 executed between the

Plaintiff Ramu and the Defendant Nazeer Ahamed. Ex.A-2 is the Advocate

Notice on behalf of the Plaintiff Ramu dated 25.06.2008. Ex.A-3 is the reply

notice on behalf of Nazeer Ahamed. Ex.A-4 is the earlier sale agreement deed

dated 17.07.1997 between Plaintiff Ramu and Defendant/Nazeer Ahamed.

Ex.A-5 is the earlier sale agreement deed dated 15.03.1999 between Plaintiff

Ramu and Defendant Nazeer Ahamed. Ex.A-6 is the earlier Sale agreement

deed dated 11.10.2004 between Plaintiff Ramu and the Defendant Nazeer

Ahamed. Ex.A-7 is the certified copy of the plaint in O.S.No.252 of 2009.

22. The suit filed by the Plaintiff Ramu seeking specific performance

of contract for sale of suit schedule properties against Nazir Ahamed, elder son

of K.M.Hanifa as sole Defendant in O.S.No.19 of 2015 (O.S.No.34 of 2009 on

the file of the learned Sub Judge, Panruti.) The Plaintiffs in O.S.No.20 of 2010

particularly the Plaintiff-6/Sadiq Basha had examined himself as D.W-1. In the

evidence of the Plaintiff-6 as D.W-1, the sale deed dated 07.04.1969 in favour

of K.M.Hanifa, was marked as Ex.B-1, Ex.B-2 is the kist receipt in the name of

the K.M.Hanifa. Ex.B-3 is the legal heirs certificate of deceased K.M.Hanifa.

Ex.B-4 is the Power of Attorney deed in favour of Rabiathul Arabia by

H.Basheeria Bivi/Plaintiff-1, H.Habibur Rahman/Plaintiff-4 and Sathiq

Basha/Plaintiff-6.

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23. D.W-1 was cross examined extensively by the learned Counsel for

the Plaintiff/Ramu. In the cross examination, the suggestion on behalf of the

Plaintiff Ramu that the Defendant in O.S.No.19 of 2015 Nazeer Ahamed had

instigated his mother and siblings as the Plaintiffs to file the suit in O.S.No.20

of 2010 was denied by him. He had admitted that even during the lifetime of

K.M.Hanifa, the Plaintiff Ramu was cultivating the suit property as a tenant.

Even after the death of K.M.Hanifa, he was still cultivating the property.

Therefore, the finding of the trial Court is erroneous and the same is to be set

aside.

24. In support of his submissions, the learned Counsel for the

Appellant Mr.R.Muralidharan relied on the following decisions:

(i) In
2023-1-L.W. 777 [U.Venkatesan vs. Susila & Others
] it has been

held as follows:

“(31)
Section 12
of Specific Relief Act enables the Court to grant
specific performance in respect of a part of contract in respect of
situations covered under sub-sections [2], [3] and [4]. In the present
case, the execution of Agreement by defendants 1 to 5 and 7 to 9 is not
in dispute. Therefore, the contract as such, is valid in respect of 8/9th
share which is enforceable against defendants 1 to 5 and 7 to 9. When
the contract is held to be valid and binding on defendants 1 to 5 and 7
to 9 except the 6th defendant who is entitled to only 1/9th share, there
is no impediment for the Court to grant specific performance, if the
plaintiff has otherwise proved his readiness and willingness and entitled
to a decree for specific performance in respect of the undivided share of
defendants 1 to 5 and 7 to 9 in respect of their 8/9th share. Hence,

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points [C] and [E] are decided in favour of plaintiff/appellant that the
suit as such maintainable to enforce the contract as regards 8/9th share
of Defendants 1 to 5 and 7 to 9.”

(ii) In
MANU/TN/1621/2022 [Thengapattanam Educational and

Service Trust vs. Kose Mohumed and Others
] it has been held as follows:

“Contract - Specific performance - Suit for - Present appeal filed
to challenge judgment and decree of trial court which dismissed suit
filed for seeking specific performance - Whether judgment and decree
under challenge need interference Held, appellant/plaintiff proved
genuineness of sale agreement - His readiness and willingness and
severability of contract also proved -Appellant entitled to get relief of
specific performance in respect of 36 cents as prayed by him -
Impugned judgment set aside - Suit decreed for relief of specific
performance in respect of 36 cents - Appeal allowed.”

(iii) In (
2020) 19 SCC 80 [ B. Santhoshamma and another vs. D.

Sarala and another
] it has been held as follows:

A. Specific Relief Act, 1963
-
S. 12
- Interpretation of -
S. 12
is
to be construed and interpreted in a purposive and meaningful manner
to empower the court to direct specific performance by the defaulting
party, of so much of the contract, as can be performed - To hold
otherwise would permit, as in the present case, a party to a contract for
sale of land, to deliberately frustrate the entire contract by transferring a
part of the suit property and creating third party interests over the same

- A contractee who frustrates a contract deliberately by his own
wrongful acts cannot be permitted to escape scot free - Interpretation of
Statutes - Basic Rules - Purposive construction/interpretation/Mischief
rule/Heydon's rule.

Further held, instead of awarding damages in respect of the part of the
contract which could not be enforced and/or damages for breach of
agreement to sell the entire suit land, trial court, held, fairly reduced the
total consideration by 1/3rd of the agreed amount, in lieu of damages,
as one third of the area agreed to be sold to the vendee could not be
sold to her”

(iv) In 2008-1-L.W. 696 [K.V. Narasimhan (died), etc and others vs.

S.Salammal & another] it has been held as follows:

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“13. What remains to be considered is the other contention of the
learned Counsel for the appellants that the plaintiff herself has claimed
the alternative relief for refund of advance amount and damages and
hence the grant of decree of specific performance by the Trial Court is
unjust tothe first defendant. In this connection, reliance was placed on
the following decisions of the Supreme Court:

1.
S. Rangaraju Naidu Vs. S. Thiruvarakkarasu
, and

2.
Kanshi Ram Vs. Om Prakash Jawal and others
, .

In the first decision cited, since the borrower was not in a
position to pay the amount due on promissory note, he entered into an
agreement to sell his property and the agreement was sought for to be
enforced and in those circumstances, the Apex Court held that
predominant object would be for recovery of dues with interest and
hence the Court is not bound to grant specific performance and in that
view of the matter, granted the alternative relief. In the second decision
cited, the plaintiff had claimed specific performance and in the
alternative, a sum of Rs. 12,000/- as damages and the defendant offered
a sum of Rs. 10 lakhs as an alternative relief and in those
circumstances, the Apex Court held that the relief of specific
performance was inequitable and awarded the alternative relief. The
above decisions would not apply to the facts and circumstances of the
present case. As rightly contended by the learned Senior Counsel for
the first defendant, the alternative plea of refund of advance amount
and damages cannot itself be a bar to claim a decree for specific
performance of the contract, as held by the Apex Court in the decision
in
Motilal Jain v. Smt. Ramdasi Devi and Ors.
(2000) 3 M.L.J. 202
(S.C.) and in the decision of the Supreme Court in P.C. Varghese,
referred above.”

25. The learned Counsel for the Respondents 1 to 6 Mr. R. Rajavelan,

submitted his argument on behalf of the Respondents. The Appellant herein as

Plaintiff had filed the suit in O.S.No.34 of 2009 before the learned Sub Judge,

Panruti against Nazeer Ahamed alone (Respondent in A.S.No.446 of 2023 and

Respondent 7 in A.S.No.445 of 2023 also in A.S.No.555 of 2022). The suit in

O.S. No. 34 of 2009 was filed by the Appellant herein as Plaintiff seeking

specific performance of contract based on an unregistered agreement for sale

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dated 06.12.2006 in respect of 3 acres 44 cents of landed property with 7.5 HP

motor pump sets and bore-well situated at Mulligrampattu village near

Nellikuppam in Cuddalore District. As per the plaint averments in O.S.No. 34

of 2009, the suit property belongs to Nazeer Ahamed who had entered into

unregistered sale agreement for sale on 06.12.2006 with Plaintiff Ramu for

Rs.2,50,000/-. The Plaintiff had paid Rs.2,30,000/- as advance. Nazeer

Ahamed agreed to execute the sale deed after receipt of Rs.20,000/- within a

period of 2 years. Also he agreed that he being the elder son of K.M.Hanifa,

and on behalf of other family members, to execute the sale deed and major

portion of sale consideration having been accepted, possession of the property

was handed over to the Plaintiff. Nazeer Ahamed filed written statement

denying execution of agreement for sale but remained ex parte before the trial

Court. Having come to know about the same, the mother and siblings of

Nazeer Ahamed, the Respondents 1 to 6 in the Appeal Suit Nos.445 of 2023

and 555 of 2022 had filed the suit in O.S. No.20 of 2010 before the learned

first Additional District and Sessions Judge, Cuddalore, for partition and

separate possession of their 58/72 share of the property from an extent of 3

acres 44 cents against Nazeer Ahamed, 7th Respondent in Nos.445 of 2023 and

555 of 2022 and the sole Respondent in A.S.No.446 of 2023. The mother and

siblings of Nazeer Ahamed claimed that they were not aware that Nazeer

Ahamed had entered into sale agreement with the Plaintiff Ramu. Therefore,

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the claim that it is a fraudulent transaction and it will not bind them. Further,

the Respondents 1 to 6 in this Appeal content that the suit property an extent of

3 acres 44 cents comprised in S.No.25/1 and S.No.25/19 belong to their father

K.M.Hanifa by virtue of a registered sale deed dated 07.04.1969 executed in

his favour by Ganapathi Pillai. K.M.Hanifa was in possession and enjoyment

of the said property till his death by effecting mutation of revenue records.

K.M.Hanifa died intestate on 21.09.1997 leaving behind him his widow, three

sons and 3 daughters as legal heirs, the Respondents 1 to 6 and Nazeer Ahamed

as 7th Respondent in the appeals in A.S.Nos.445 of 2023 and 555 of 2022.

According to the Mohammedan Law, the window takes 1/8 share and the

remaining 7/8 shares taken by 3 sons and 3 daughters. The sons taking 2

shares of the daughters share. Therefore, the Plaintiffs together entitled to

58/12 share. Nazeer Ahamed is entitled to 14/72 share. Nazeer Ahamed

remained ex parte in the partition suit also. The only contesting Defendant was

Ramu. Ramu had claimed that Nazeer Ahamed had been looking after and

managing the property on behalf of other family members. Therefore, the

Plaintiff Ramu claims that he had entered into sale agreement dated 17.07.1997

where he undertook to execute sale deed with all other co-sharers and it could

not be completed. Therefore, subsequent sale agreements were executed on

following dates 15.03.1999, 11.10.2004 and yet another agreement for sale

dated 06.12.2006 between them. It is further contended that on the strength of

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agreement for sale dated 06.12.2006, the Plaintiff Ramu claims to have filed

the suit for specific performance and the suit was filed by the mother and other

siblings of Nazeer Ahamed at the instigation of Nazeer Ahamed.

26. The suit in O.S.No.34 of 2009 was withdrawn and transferred to

the file of the I Additional District and Sessions Judge, Cuddalore, to be tried

along with O.S.No.20 of 2010 jointly as per order dated 12.08.2014 made in

Transfer O.P.No. 29 of 2014 by the learned Principal District Judge,

Cuddalore. Both the suits in O.S.No.34 of 2009, re-numbered as O.S.No.19 of

2005 before the learned I Additional District Judge and O.S.No.20 of 2010

were tried jointly and common judgment was rendered on 29.04.2017 in which

the claim of specific performance was refused by the learned Additional

District and Sessions Judge, Cuddalore on the ground that the execution of

agreement for sale dated 06.12.2006 by Nazeer Ahamed alone is invalid since

the Plaintiffs in O.S.No.20 of 2010 who are the other legal heirs of deceased

K.M.Hanifa have got shares over the suit property. However, refund of

advance amount of Rs.2,30,000/- with interest at the rate of 6% per annum

from the date of suit was ordered and Nazeer Ahamed was directed to pay the

said amount.

27. Regarding suit for partition in O.S.No. 20 of 2010 preliminary

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decree was passed by the learned I Additional District and Sessions Judge,

Cuddalore granting the Plaintiffs 58/72 share. Aggrieved by the common

judgment dated 29.04.2017, the Plaintiff Ramu had preferred two appeals

before this Court in A.S.No.445 of 2023 and A.S.No.446 of 2023 against the

aforesaid two suits in O.S.No. 19 of 2015 (Previously O.S. No.34 of 2009) and

O.S.No. 20 of 2010 on the file of the learned I Additional District and Sessions

Judge, Cuddalore.

28. On the strength of the preliminary decree passed on 29.04.2017,

the Plaintiffs in O.S.No. 20 of 2010 obtained final degree in I.A.No. 2 of 2018

in O.S. No. 20 of 2010 after contest on 28.04.2022. As per the final decree, the

Plaintiffs were allotted 2 acres 61½ cents of land representing their share of

58/72 and 63 cents was allotted to Nazeer Ahamed towards his 14/72 share as

Advocate Commissioner found that the extent of land available on field is 3

acres 26 cents. Aggrieved over the final decree passed in I.A. No. 2 of 2018 in

O.S.No.20 of 2010, the Plaintiff in O.S.No. 34 of 2009, who is the Respondent

in the EP, had filed A.S.No.555 of 2022 against the order passed by the learned

I Additional District and Sessions Judge, Cuddalore. The Respondents 1 to 6

in this appeal had filed E.P.No. 177 of 2022 in O.S.No.20 of 2010 before the

learned I Additional District and Sessions Judge, Cuddalore against Nazeer

Ahamed and Ramu. The Appellant Ramu stalling the execution proceedings

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by referring to pendency of these three appeals. The impugned common

judgement dated 29.04.2017 made in two suits and final decree dated

28.04.21022 are under challenge by way of these three Appeals before this

Court in A.S.No.445 and 446 of 2023 and A.S.No.555 of 2022. The learned I

Additional District and Sessions Judge, Cuddalore, in his judgment in

paragraph 14 had observed as follows:

“K/t/vz;/19-2015 vd;w tHf;fpy; cs;s thjp uhK th/rh/1
Mf tprhhpf;fg;gl;Ls;shh;/ mth; jdJ rhl;rpaj;jpy; FWf;F
tprhuizapy; jhth brhj;Jf;fis cwdpghtpw;F MW
gps;isfs; thhpRfshf cs;shh;fs; vd;W bjhpe;Jjhd;/ jhd;
e!PJ mfkJt[ld; xg;ge;jk; nghl;ljhft[k; cwdpgh 1997y;
,we;Jtpl;lhh; vd;Wk; xg;gf[ ;bfhz;Ls;shh;/”

29. By observing above and relying upon Ex.A-1, the learned I

Additional District and Sessions Judge, Cuddalore, had come to the conclusion

that the agreement for sale dated 06.12.2006 will not bind the other legal heirs

of K.M.Hanif, Respondents 1 to 6 thereby declined the main relief of specific

performance of contract for sale of the property but granted the alternate relief

of refund of advance amount of Rs.2,30,000/- with interest at the rate of 6%

per annum from the date of plaint till the date of recovery.

30. Hence, the said unregistered agreement for sale is invalid,

unenforceable since Nazeer Ahamed, who had executed the agreement

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regarding the entire property of 3 acres 44 cents did not have the absolute title

of the property. On perusal of the sale agreement, it reads as if he does not

have absolute right over the property and it reads as if he alone is the legal heir

of K.M.Hanifa. The Respondents 1 to 6, who are widow, 3 sons and 3

daughters were not referred in the sale agreement at all. The signature of the

Respondents were not obtained in the sale agreement deed. The agreement is

not executable as the same is barred by
Section 17
of Specific Relief Act. In

fact, it is fraudulent on the face of it.

31.
In this nexus, the Respondents 1 to 6 (Plaintiffs in O.S.No.20 of

2010) relied upon the decision made in 2015 3
CTC 229 [Pemmada

Prabhakar and others vs. Youngmen
's Vysya Association and others]

wherein it has been held as under:

“33. .... It is an undisputed fact that the plaintiffs have not approached the
Trial Court with clean hands. It is evident from the pleadings of the
Agreement of Sale which is produced for the decree for specific
performance of Agreement of Sale as the plaintiffs did not obtain the
signatures of all the co-sharers of the property namely, the mother of the
defendants, the third brother and 3 sisters. Therefore, the agreement is not
enforceable in law as the persons who have executed the sale deed, did not
have the absolute title of the property.”

32. The learned trial Judge granted final decree dated 28.04.2022

made in I.A.No. 2 of 2018 in O.S.No.20 of 2010 and held that the green

sketched portion in the Advocate Commissioner's report totalling 2 acres 61½

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cents had been allotted to the Plaintiffs 1 to 6 in O.S.No.20 of 2010 and the

portion highlighted in yellow sketch in the plan to the extent of 0.63 cents was

allotted to Nazeer Ahamed. Under the said final decree, the Plaintiffs as

Petitioners in the final decree were permitted to draw water from the mortar

pump set for 5 days in the week and Nazeer Ahamed was given permission to

draw water for 2 days and 0.1½ cents have been earmarked for use as common

pathway for both parties. The claim of the Appellant Ramu that 14/72 share of

Nazeer Ahamed equivalent to 0.63 cents having been allotted in the final

decree can be allotted in his favour cannot be countenanced as the agreement

for sale under Ex.A-1 suffers from suppression of material facts of other legal

heirs of deceased K.M.Hanifa. There is no transfer of interest in immovable

property under Ex.A-1 agreement for sale and it does not by itself create any

interest or charge on such property according to
Section 54
of the Transfer of

Property Act, 1882. For this proposition, the learned Counsel for the

Respondent rely on the reported decision in 2021 (1) MWN (Civil) 316 (SC)

[Venigalla Koteswaramma vs. Malampati Suryamba and others] wherein it is

held as under:

“39. Apart from the above, it is also fundamental, as per
Section 54
of the
Transfer of Property Act, 1882, that an agreement for sale of immoveable
property does not, of itself, create any interest in or charge on such
property vide Bank of India v. Abhay D. Narottam and others, 2005 (11)
SCC 520. A person having an agreement for sale in his favour does not
get any right in the property, except the right of obtaining sale deed on
that basis. For ready reference, we may reproduce Section 54 of the

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Transfer of Property Act
that reads as under: -

“54. “Sale” defined.- “Sale” is a transfer of ownership in exchange for a
price paid or promised or part-paid and part- promised.

Sale how made.- Such transfer, in the case of tangible immoveable
property of the value of one hundred rupees and upwards, or in the case of
a reversion or other intangible thing, can be made only by a registered
instrument.

In the case of tangible immoveable property of a value less than one
hundred rupees, such transfer may be made either by a registered
instrument or by delivery of the property. Delivery of tangible
immoveable property takes place when the seller places the buyer, or such
person as he directs, in possession of the property.

Contract for sale.- A contract for the sale of immoveable property is a
contract that a sale of such property shall take place on terms settled
between the parties.

It does not, of itself, create any interest in or charge on such property.”

39.1. It goes without saying that the alleged agreement for sale did not
invest the vendee with title to, or any interest in, the property in question;

and the alleged agreement for sale did not invest the vendee with any such
right that the plaintiff could not have maintained her claim for partition in
respect of the properties left by Annapurnamma without seeking
declaration against the agreement. Therefore, this plea about non-
maintainability of suit for want for relief of declaration against the said
agreement for sale remains totally baseless and could only be rejected.”

33. Further, the learned Counsel for the Respondents 1 to 6 submitted

that such claim is not legally enforceable as the sale agreement dated

06.12.2006 under Ex.A-1 remains unregistered which is inadmissible for

seeking protection under
Section 53 (A)
of the Transfer of Property Act, 1882

though it can be received in evidence. This is in view of
Section 17
(1-
A) of

the Registration Act, 1908
which came into force with effect from 24.09.2001.

For this proposition, the learned Counsel for the Respondent relied on the

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reported decision in 2018 (
5) LW 363 [Ameer Minhaj vs. Dierdre Elizabeth

(Wright) Issar and others
] wherein it has been held as under:

“
Registration Act
(1908),
Section 17(1A)
, Unregistered
agreement.

Transfer of Property Act
, (1882),
Section 53A
, Unregistered
agreement, part performance claim of.

Specific performance – Suit agreement – Nor registered
document – Effect of
Document though exhibited, will bear an endorsement that it is
admissible only as evidence of the agreement to sell under the proviso
to
Section 49
and shall not have any effect for the purposes of
section
53A
.

Trial Court right in overturning the objection regarding marking
and exhibiting these documents.

In other words, the core issue to be answered in the present
appeal is whether the suit agreement dated 9th July 2003, on the basis
of which relief of specific performance has been claimed, could be
received as evidence as it is not a registered document.
Section 17(1A)

of the 1908 Act came into force with effect from 24th September, 2001
Whereas, the suit agreement was executec subsequently on 9th July,
It is amply clear that the document containing contract to
transfer the right, title or interest in an immovable property for
consideration is required to be registered, if the party wants to rely on
the same for the purposes of
Section 53A
of the 1882 Act to protect its
possession over the stated property, If it is not a registered document,
the only consequence provided in this provision is to declare that such
document shall have no effect for the purposes of the said
Section 53A

of the 1882 Act.”

34. Further, in order to receive the benefit of that section, it is

mandatory for the Appellant to prove that possession is referred in agreement.

Possession is not referred in Ex.A-1, but it is pleaded by him in the plaint, in

the suit for specific performance in O.S. No. 34 of 2009 re-numbered as

O.S.No.19 of 2015. It is not legally maintainable in the face of right of pre-

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emption which is termed as right of Shuffa under the Mohammedan Law. The

object of the right of Shuffa is to avoid inconvenience arising from introduction

of stranger as co-owner. Under the Sunni Law a co-owner (Shafi-Sharik) can

claim right of pre-emption. If the Appellant being a stranger and third party to

the family if allowed to take share of Nazeer Ahamed, it would cause hardships

and inconvenience in proper enjoyment of the property by the Plaintiffs 1 to 6

in O.S.No.20 of 2010 as common pathway and drawing water from mortar

pump set is provided under final decree.

35. Though the 7th Respondent Nazeer Ahamed in the Appeal in

A.S.No.445 of 2023 and 555 of 2022 is liable to return the advance amount

having been received by him, yet the Respondents 1 to 6 in order to give

quietus to the instant litigations and as the Appellant Ramu is holding entire

property unlawfully as is found from his pleadings, the Respondents 1 to 6 in

the Appeals are prepared to pay the said amount as indicated in the decree.

Accordingly, they have filed memo to that effect before this Court on

11.09.2023 without prejudice to their case by expressing their readiness and

willingness. Hence, it is prayed that all Appeals filed by the Appellant Ramu

may be dismissed with cost and thus render justice.

Point for determination in A.S.No.445 of 2023

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Whether the judgment of the learned I Additional District
and Sessiomns Judge, Cuddalore, by common judgment in
O.S.No.20 of 2010 and in O.S.No.19 of 2015 granting relief of
partition of 58/72 shares for the Plaintiffs 1 to 6 in O.S.No.20 of
2010 is erroneous?

Point for determination in A.S.No. 446 of 2023

Whether the judgment of the learned I Additional District
and Sessions Judge, Cuddalore by common judgment in
O.S.No.20 of 2010 and in O.S.No.19 of 2015 refusing to grant
the relief of specific performance of contract for sale of the
property to the Plaintiff in O.S.No.19 of 2015 and granting the
alternate relief of refund of the advance amount is erroneous?

Point for determiniation in A.S.No.555 of 2022

Whether the final decree dated 28.04.2022 passed in
I.A.No.2 of 2018 in O.S.No.20 of 2010 is to be set aside as
erroneous?

36. Heard the learned Counsel for the Appellant Mr. R. Muralidharan

and the learned Counsel for the Respondents 1 to 6 Mr. R. Rajavelan.

37. Perused the deposition of P.W-1, P.W-2 in O.S.No.19 of 2015 and

documents under Ex.A-1 to Ex.A-7. Perused the deposition of Plaintiff-6 in

O.S.No.20 of 2010 as D.W-1 in O.S.No.19 of 2015. Perused the documents

Ex.B-1 to Ex.B-4 in O.S.No.19 of 2015. Perused the common judgment dated

29.04.2017 passed in O.S.No.19 of 2015 and O.S.No.20 of 2010 by the learned

I Additional District and Sessions Judge, Cuddalore, and the order dated

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28.04.2022 passed in I.A.No.2 of 2018 in O.S.No.20 of 2010 by the learned I

Additional District and Sessions Judge, Cuddalore.

38. On perusal of the common judgment dated 29.04.2017 passed in

O.S.No.20 of 2010 and O.S.No.19 of 2015, the order dated 28.04.2022 passed

in I.A.No.2 of 2018 in O.S.No.20 of 2010 and from the cross examination of

D.W-1, the Plaintiff-6 in O.S.No.20 of 2010 as D.W-1 in O.S.No.19 of 2015,

Ramu was a tenant under K.M.Hanifa and continued to be tenant under the

legal heirs of K.M.Hanifa. Therefore, he is aware of the details of the property

regarding ownership. He is aware that K.M.Hanifa died and his legal heirs are

the owners of the property. While so, the Plaintiff Ramu entering into sale

agreement with the elder son of K.M.Hanifa by name Nazeer Ahamed who is

the Defendant-1 in O.S.No.20 of 2010 (suit for partition) and the sole

Defendant in O.S.No.19 of 2015 seeking the relief of specific performance of

contract for sale of the property is found fraudulent. Also it is an unregistered

sale agreement deed. From the marking of documents, Ex.A-2 to Ex.A-7, it is

found that Ex.A-4 to Ex.A-6 are the earlier sale agreement deeds between

Nazeer Ahamed and the Plaintiff Ramu. What was the reason for getting fresh

sale agreement in Ex.A-4 on 17.07.1997. Again as per Ex.A-5, he had entered

into sale agreement deed dated 15.03.1999. Again he had entered another

agreement with Nazeer Ahamed as per Ex.A-6 dated 11.10.2004. So, there

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were four (4) sale agreement deeds. Ex.A-1 is the sale agreement deed dated

06.12.2006, based on which the suit was filed. Since the Plaintiff had not

approached the Court with clean hands, the Civil Court had granted relief

based on principles of fairness, equity and good conscience. The Plaintiff

cannot be granted the relief of specific performance of contract. The suit

property is an extent of 3 acres and 44 cents for which the sale agreement was

obtained. From one of the legal heirs of K.M.Hanifa leaving behind him, the

Plaintiffs and first Defendant in O.S.No.20 of 2010. Not only that,

Mohammedan Law does not have the principles of joint family which is

restricted only to Hindu Joint Family. Therefore, the claim in plaint in

O.S.No.19 of 2015 that there are no recitals that Nazeer Ahamed is entering

into sale agreement deed on behalf of all the legal heirs of K.M.Hanifa. Also

as rightly pointed out by the learned I Additional District and Sessions Judge,

the Plaintiff in O.S.No.19 of 2015, Ramu had not obtained any authorisation

letter authorising Nazeer Ahamed to act on their behalf to enter into contract

regarding the property. While so, knowing fully well that K.M.Hanifa died, his

legal heirs have right over the property, the Plaintiff Ramu allegedly entering

into sale agreement deed dated 06.12.2006 with only one heir as per Ex.A-1 is

found unenforceable. After having paid Rs.2,30,000/- out of the total sale price

of Rs.2,50,000/-, for the balance consideration of Rs.20,000/-, time stipulated

for payment of the balance amount for a period of one year is found fraudulent.

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The Plaintiff Ramu is not entitled even for refund of the advance amount paid,

Rs.2,30,000/-. Still the learned I Additional District and Sessions Judge,

Cuddalore had granted alternate relief instead of dismissing the suit. Therefore,

the judgment of the learned I Additional District and Sessions Judge decreeing

the suit for specific performance, at the same time, granting alternate relief of

refund of the advance amount is found just and proper. The grounds raised in

the grounds of Appeals that the judgment is not proper and is to be set aside is

found unacceptable. The grant of alternate relief in O.S.No.19 of 2015 is found

justified.

39. The Plaintiff Ramu examined as P.W-1 and marked documents

under Ex.A-1 to Ex.A-7. The Plaintiff Ramu was cross examined. In the cross

examination, the Plaintiff Ramu admits that he was aware that K.M.Hanifa

died leaving behind him, his wife, three daughters and three sons as legal heirs.

He had admitted clearly that he had not sought specific performance against the

other legal heirs. He had also not attempted to interfere the contract of specific

performance based on the earlier agreements in 2004, 1999 and 1997. He had

admitted in all the earlier sale agreements that he had not obtained any

signature from the other legal heirs of K.M.Hanifa. He had stated that the one

year period for execution of the sale deed was agreed. Considering the fact that

the one of the legal heirs of K.M.Hanifa was not in India, on his return, Nazeer

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Ahamed claimed to execut the sale deed. Therefore one year period was

granted.

40. The suggestion of the learned Counsel for the Plaintiffs in

O.S.No.20 of 2010 that the sale agreement deed is fraudulent deed as the

Plaintiff Ramu had not obtained any signature from other legal heirs of

K.M.Hanifa was denied by the Plaintiff. The learned Judge had considered

those facts while assessing the evidence of Plaintiff in O.S.No.19 of 2015

thereby refused to grant the relief of specific performance of contract for sale

of the property.

41. On perusal of Ex.A-1 unregistered sale agreement deed dated

06.12.2006 marked in O.S.No.19 of 2015, only the name of Nazeer Ahamed is

found as one of the parties to sale agreement. As per the sale deed dated

07.04.1969, which is marked as Ex.B-1, K.M.Hanifa purchased the property.

As per Ex.B-2 the kist paid in the name of the K.M.Hanifa dated 07.01.2010.

Ex.B-3 is the legal heirship certificate issued to the legal heirs of K.M.Hanifa

in the name of the Plaintiffs and Defendant-1 in O.S.No.20 of 2010 is found

true. Under those circumstances, the Court has to necessarily grant preliminary

decree for partition as per the plaint averments in O.S.No.20 of 2010. The

claim of the Plaintiffs in O.S.No.20 of 2010 is proved by the evidence of D.W-

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1 in O.S.No.19 of 2015. Instead of Nazeer Ahamed, the sole Defendant in

O.S.No.19 of 2015 who remained ex parte, the same Defendant as the

Defendant-1 in O.S.No.20 of 2010, he did not enter the witness box. Instead,

6th Plaintiff in O.S.No.20 of 2010 had examined himself as D.W-1 in

O.S.No.19 of 2015. The plaint averments in O.S.No.20 of 2010 and the written

statement in O.S.No.19 of 2015 was stated in the affidavit filed as examination

in chief. The plaint averments in O.S.No.20 of 2010 was put as suggestion to

D.W-1.

42. On perusal of the Ex.A-1, the sale agreement deed dated

06.12.2006 there is no mention of sole Defendant in O.S.No.19 of 2015. The

recitals under Ex.A-1 does not mention that Nazeer Ahamed has entered into

sale agreement on behalf of other legal heirs of K.M.Hanifa. Also, the conduct

of the sole Defendant in O.S.No.19 of 2015, Nazeer Ahamed not entering

witness box and remained ex parte gives strong presumption against the

Defendants. For 3 acres and 34 cents, a meagre amount of Rs.2,50,000/- was

fixed. This is also a suspicious circumstance. Therefore, the learned I

Additional District and Sessions Judge, Cuddalore, granted relief based on

fairness, equity and good conscience and not exercising the discretion in favour

of Plaintiff Ramu in O.S.No.19 of 2015. The discussion of evidence by the

learned I Additional District and Sessions Judge is well reasoned, since one of

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the legal heirs of K.M.Hanifa entered into sale agreement with Plaintiff Ramu

is found to be fraudulent deed. Still the learned I Additional District and

Sessions Judge had granted relief of refund of advance amount of Rs.2,30,000/-

against which the Plaintiff Ramu who had preferred Appeal in A.S.No.446 of

2023. When Plaintiff Ramu had not approached the Court with clean hands, the

Court need not grant any relief in favour of the Defendant-2 in O.S.No.20 of

2010.

43. On analysing evidence, the learned trial Judge had arrived at a

conclusion that the Plaintiffs in O.S.No.20 of 2010 are entitled to one share for

each of the daughters and two shares for the sons. Accordingly, the Plaintiffs

were granted 58/72 shares. Therefore, the shares entitled to Plaintiffs 1 to 6

was calculated as 58/72 shares.

44. On proper appreciation of evidence and on perusal of documents

under Ex.A-1 to Ex.A-7 and Ex.B-1 to Ex.B-4, the learned Judge had granted

the preliminary decree to the Plaintiffs in O.S.No.20 of 2010. The facts and

circumstances of the case as gathered from records, invoking the

Mohammedan Law and Mohammedan Law of Succession, the Plaintiff cannot

seek invocation of Hindu Law invoking the principles of joint family and on

basis of the joint family, the elder son of K.M.Hanifa/Defendant Nazeer

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Ahamed entered into sale agreement with Plaintiff Ramu cannot be accepted.

Therefore, as rightly pointed out when the sale agreement entered into only

with Nazeer Ahamed, the elder son of K.M.Hanifa, by the Plaintiff is found not

fair. It was considered as fraudulent, then the Plaintiff is not entitled to any

relief under the
Specific Relief Act
. The suit ought to have been dismissed.

Instead the learned Judge had granted relief of refund of advance amount in

O.S.No.19 of 2015 whereas the learned Judge had granted preliminary decree

for partition of the Plaintiffs share as 58/72. The learned Judge granted

preliminary decree to the Plaintiffs as 58 / 72 is not found erroneous. It is a

well reasoned judgment that does not warrant any interference by this Court.

45. In A.S.No.555 of 2022 also, the Appellant/Defendant-2 in

O.S.No. 20 of 2010 seeking to set aside the final decree date 28.04.2022 passed

in I.A.No.2 of 2018 in O.S.No.20 of 2010 by by the learned I Additional

District and Sessions Judge, Cuddalore is found unacceptable as the learned

trial Judge had passed final decree in continuation of the preliminary decree.

The Advocate Commissioner was appointed and surveyed the property with the

help of a Surveyor and filed the report. Based on the report of the Advocate

Commissioner, the learned I Additional District and Sessions Judge had

granted final decree which is agitated by the Defendant-2 in O.S.No.20 of 2010

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in continuation of the preliminary decree for partition to the Plaintiffs.

46. During argument, the learned Counsel for the Appellant in

A.S.No.555 of 2022 submitted that if the Court arrives at a conclusion that

Plaintiffs in O.S.No.20 of 2010 are entitled to 58 /72 shares, then this Court

exercising discretion shall pass judgment granting the relief of specific

performance for the share of the Defendant-1/Nazeer Ahamed in O.S.No.20 of

2010. This is also found unenforceable as the other legal heirs are not willing

to encumber the properties. The granting of the discretionary relief of specific

performance of sale of the property in O.S.No.19 of 2015 and restraining the

share of the Defendant-1 in O.S.No.20 of 2010 cannot be granted, since the

other legal heirs of K.M.Hanifa had objected to the sale agreement entered into

with the Defendant-1 in O.S.No.20 of 2010.

47. The rulings cited by the learned Counsel for the Appellant in (
i)

2023-1-L.W. 777 [U.Venkatesan vs. Susila & Others
]; (
ii)

MANU/TN/1621/2022 [Thengapattanam Educational and Service Trust vs.

Kose Mohumed and Others
]; (iii) (2020) 19 SCC 80 [ B. Santhoshamma and

another vs. D. Sarala and another] and (iv) 2008-1-L.W. 696 [K.V.

Narasimhan (died), etc and others vs. S.Salammal & another] will not be

applicable to the facts of this case because there is evidence in the cross

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examination of the 6th Plaintiff H.Sadiq Basha as D.W-1 in O.S.No.20 of 2010

that the Plaintiff in O.S.No.19 of 2015 Ramu was a tenant cultivating the lands

prior to the death of K.M.Hanifa and till the date of trial as a tenant. Therefore,

he has personal knowledge of the details of the family of K.M.Hanifa. While

so, if he has bona fide intention of purchasing the property, he ought to have

entered into agreement of sale with all the legal heirs of K.M.Hanifa, the

Plaintiffs in O.S.No. 20 of 2010. Earlier to that, he had obtained and ex parte

decree for specific performance of contract against the sole Defendant Nazeer

Ahamed, one of the legal heirs of the deceased K.M.Hanifa and the elder son

of K.M.Kanifa. As per the evidence, Ex.A-4 dated 17.07.1997 is the earliest

agreement entered into with Nazeer Ahamed. Ex.A-5 the same sale agreement

renewed on 15.03.1999. Ex.A-6 again the same sale agreement renewed as on

11.10.2004. Ex.A-7 is the suit filed by the Plaintiff in O.S.No.20 of 2010 for

injunction against the Plaintiff Ramu before the learned District Munsif in

O.S.No. 252 of 2009. Therefore, Ex.A-4 to Ex.A-6 are the prior sale

agreement deeds entered into with the sole Defendant in O.S.No.19 of 2015 by

the Plaintiff Ramu who also happens to be the tenant of the of the family of the

deceased K.M.Hanifa. Ex.A-1 is the latest sale agreement date 06.12.2006

which is pressed into service in O.S.No.19 of 2015. When the Plaintiffs in

O.S.No.20 of 2010 came to know about the ex parte decree regarding specific

performance, they made enquiries and found out that the Plaintiff in O.S.No.

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19 of 2015 had obtained ex parte decree in O.S.No.34 of 2009 before the

learned Sub Judge, Panruti. Therefore, the Plaintiffs in O.S.No. 20 of 2010

were forced to file the suit seeking partition against the elder son of

K.M.Hanifa, the first Defendant in O.S. No.20 of 2010. Only after filing the

suit, they had sought transfer of the suit in O.S. No.34 of 2009 for joint trial in

O.S.No. 20 of 2010 by filing transfer application before the learned Principal

District and Sessions Judge, Cuddalore. After setting aside the ex parte decree

in O.S.No. 34 of 2009 only the suit was ordered on transfer to the learned I

Additional District and Sessions Judge to be tried along with O.S.No. 20 of

2010. Meanwhile, before filing the suit for partition, the Plaintiff in O.S.No.

20 of 2010 had filed O.S.No. 252 of 2009 before the learned Principal District

Munsif, Panruti, seeking declaration that the suit schedule mentioned property

is the undivided property of Plaintiffs as well as the second Defendant in

O.S.No. 252 of 2009 and seeking permanent injunction restraining the first

Defendant Ramu from interfering with the peaceful possession and the

enjoyment of the suit property. Since suit in O.S.No.20 of 2010 and the suit in

O.
S. 19
of 2015 (O.S.No.34 of 2009) were tried together, the suit in

O.S.No.252 of 2009 was not taken up along with this suit. From the evidence,

in the joint trial in O.S. No. 19 of 2015 and O.S.No.20 of 2010, it is found that

the Plaintiff Ramu in O.S.No. 19 of 2015 was a tenant under the Plaintiffs and

prior to them under K.M.Hanifa and he had entered into agreement of sale in

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the year 1997 immediately after the death of K.M.Hanifa for sale of the

property. That shows that he was not fair. He had obtained sale agreement

with only one of parties and not from all the legal heirs. A Civil Court grants

relief under the
Specific Relief Act
only to those who approach the Court with

clean hands. Here, he had played fraud on the other legal heirs of K.M.Hanifa

by putting them in the dark.

48. The Plaintiffs in O.S.No.20 of 2010 were surprised to know that

Nazeer Ahamed, the elder son of K.M.Hanifa, had entered into sale agreement,

with the Plaintiff Ramu, based on that, the Plaintiff in O.S.No.19 of 2015 had

obtained an ex parte decree which forced them to file the suit seeking

injunction against the Ramu before the learned Principal District Munsif under

Ex.A-7 (O.S.No.252 of 2009). Subsequently, they had filed a suit in O.S.No.

20 of 2010 seeking partition against Nazeer Ahamed, the elder son of

K.M.Hanifa. Also they had filed a petition to set aside the ex parte decree and

to implead themselves as Defendants in O.S.No. 19 of 2015 to set aside the ex

pare decree in O.S.No.34 of 2009 before the learned Sub Judge, Panruti and

also simultaneously filing the Transfer Original Petition seeking transfer

O.S.No. 34 of 2009 to the file of the learned I Additional District and Sessions

Judge wherein they had filed a suit for partition. Therefore, both the suits were

taken up together. The conduct of the Plaintiff in O.S.No.19 of 2015 in getting

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a sale agreement deed leaving out many of the legal heirs, wife and other sons

and daughters of K.M.Hanifa and only from Naseer Ahamed is unfair. In the

principles of equity, a person who had approached the Court with unclean

hands is not entitled to any relief from the Civil Court. By his conduct, he had

played fraud on the other legal heirs of K.M.Hanifa by entering into sale

agreement in 1997 with Nazeer Ahamed and going on renewing the same over

a period of time as per E.A-4 to Ex.A-6.
All the sale agreements are

unregistered sale agreements. Therefore, a person of such character cannot

seek relief under equity. The rulings cited by the learned Counsel for the

Appellants (Plaintiff in O.S.No.19 of 2015) are not applicable to a person who

had approached the Court with unclean hands. Therefore, the rulings (i) 2023-

1-L.W. 777 [U.Venkatesan vs. Susila & Others
]; (
ii) MANU/TN/1621/2022

[Thengapattanam Educational and Service Trust vs. Kose Mohumed and

Others
]; (iii) (2020) 19 SCC 80 [ B. Santhoshamma and another vs. D.

Sarala and another] and (iv) 2008-1-L.W. 696 [K.V. Narasimhan (died), etc

and others vs. S.Salammal & another] are rejected.

49. The rulings relied by the learned Counsel for the Respondents in

(
i) 2015 3 CTC 229 [Pemmada Prabhakar and others vs. Youngmen
's Vysya

Association and others]; (ii) 2021 (1) MWN (Civil) 316 (SC) [Venigalla

Koteswaramma vs. Malampati Suryamba and others] and (iii) 2018 (5) LW

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363 [Ameer Minhaj vs. Dierdre Elizabeth (Wright) Issar and others
] are

found applicable to the facts of this case in the circumstances as discussed

above. The claim of the Appellant regarding execution of the sale deed for 63

cents, the share of Nazeer Ahamed alone and to grant the relief of specific

performance as per Ex.A-1 also is rejected. In the light of the arguments and

rulings cited by the learned Counsel for the Respondents 1 to 6 (Plaintiffs in

O.S.No.20 of 2010), the legal heirs of K.M.Hanifa by the principle that the

right of a co-owner, the Plaintiffs in O.S.No.20 of 2010, right of pre-emption to

purchase the property, the share of Nazeer Ahamed, instead of creating

encumbrance in favour of third parties, who are strangers to the family in

enjoying the property.

The ruling relied on by the learned Counsel for the

Respondents 1 to 6 reported in
2018-5-L.W. 363 [Ameer Minhaj vs. Dierdre

Elizabeth (Wright) Issar and others
] that an unregistered document cannot be

pressed into service seeking relief of specific performance of contract as per

Section 17
(1-
A) of the Registration Act
which came to force from 24th

September 2001.
Also the ruling cited by the learned Counsel for the

Respondents in 2021 (1) MWN (Civil) 316 (SC) [Venigalla Koteswaramma

vs. Malampati Suryamba and others] is squarely applicable to the facts of this

case. Therefore, the Appellant herein Ramu who is a Plaintiff in O.S. No.19 of

2015 and Defendant-2 in O.S.No.20 of 2010 is not entitled to the relief of

specific performance. The Appeal against the final decree also is to be

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dismissed in the light of the fact that the Plaintiff Ramu had approached the

Court with unclean hands since the learned I Additional District and Sessions

Judge, Cuddalore had granted alternate relief of refund of the advance amount

paid by the Plaintiff Ramu in O.S.No.19 of 2015 to the sole Defendant Nazeer

Ahamed. Also the Respondents in all the these Appeals in A.S.No.555 of

2022, 445 and 446 of 2023 had filed memo agreeing to refund of the amount.

In the light of the above, all the three Appeals are to be dismissed confirming

the judgment of the learned I Additional District and Sessions Judge, granting

the alternate relief of refund of advance amount paid by the Ramu the Plaintiff

in O.S.No.19 of 2015.

50. In the light of the above discussion from paragraphs 37 to 49, the

final decree order dated 28.04.2022 passed in I.A.No.2 of 2018 in O.S.No.20 of

2010 by the learned I Additional District and Sessions Judge, Cuddalore, is a

well reasoned order which does not warrant any interference by this Court in

the light of the fact that the suit for specific performance was rejected and

instead alternate relief only granted by the learned I Additional District and

Sessions Judge, Cuddalore. Therefore, the grant of final decree based

preliminary decree dated 29.04.2017 passed in O.S.No.20 of 2010 is justified.

Accordingly, the point for determination in A.S.No.555 of 2022 is

answered in favour of the Plaintiffs in O.S.No.20 of 2010/Respondents

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herein and against the Plaintiff in O.S.No.19 of 2015/Appellant herein.

51. In the light of the above discussion from paragraphs 37 to 49, the

judgment dated 29.04.2017 in O.S.No.20 of 2010 passed by the learned I

Additional District and Sessions Judge, Cuddalore, granting the relief of

partition of 58/72 shares in favour of the Plaintiffs 1 to 6 is found proper. It is

a well reasoned judgment which does not warrant any interference by this

Court under Section 96 and
Order XLI of CPC
. Accordingly, the point for

determination in A.S.No.445 of 2023 is answered in favour of the Plaintiffs

in O.S.No.20 of 2010/Respondents herein and against the Plaintiff in

O.S.No.19 of 2015/Appellant herein.

52. In the light of the above discussion from paragraphs 37 to 49, the

judgment of the learned I Additional District and Sessions Judge, Cuddalore, in

refusing to grant the relief of specific performance of contract for sale in favour

of the Plaintiff in O.S.No.19 of 2015 and instead granting the alternate relief of

refund of advance amount is four proper. It is a well reasoned judgment which

does not warrant any interference by this Court exercising discretion under

Section 96 and
Order XLI of C.P.C
. Accordingly, the point for

determination in A.S.No.446 of 2023 is answered in favour of the Plaintiffs

in O.S.No.20 of 2010/Respondents herein and against the Plaintiff in

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O.S.No.19 of 2015/Appellant herein.

In the result, all the three Appeals are dismissed with cost throughout.

The fair and final order dated 28.04.2022 passed in I.A.No.2 of 2018 in

O.S.No.20 of 2010 by the learned I Additional District and Sessions Judge,

Cuddalore is confirmed. Also, the common judgment and decree dated

29.04.2017 passed in O.S.No.20 of 2010 and O.S.No.19 of 2015 by the learned

I Additional District and Sessions Judge, Cuddalore is confirmed.

Consequently, the connected miscellaneous petitions are closed.

14.07.2025

shl/srm
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order

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SATHI KUMAR SUKUMARA KURUP, J.,

shl/srm

To:

1. The I Additional District and Sessions Court,
Cuddalore.

2. The Section Officer,
V.R. Section,
High Court of Madras.

Judgment made in
A.S.Nos.555 of 2022, 445 and 446 of 2023

14.07.2025

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