R. PONNUSAMY vs N. RENGASAMY(Died) ,S/O. NANJAPPA

2026:MHC:4279
AS No. 615 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.10.2026
CORAM
THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
AS No. 615 of 2016
CNR: {HCMA010043912016}
1. R. Ponnusamy
S/o. Late Rayappa Gounder,
No. 91, Narayanaguru Road,
Saibaba Colony, Coimbatore 641 011.
2. T.C. Nalla Samy
S/o. Chinnappa Gounder,
No. 7, Vallalar Nagar, Onappalayam Road,
Vadavalli, Coimbatore 641 041.
..Appellants
Vs
1. N. Rengasamy(Died) ,
S/o. Nanjappa Gounder,
No. 4B/70 Kannarpalayam,
Kizhakku Thottam, Balaji Nagar,
Sikkarayampalayam Village,
Coimbatore Taluk
Now At
No.172, Vadakku Thottam,
Periyakallipatti, Sathi Taluk,
Periyar District.
2. Tmt. Revathy
W/o. Govindharajan,
No. 172, Vadakku Thottam,
Periya Kallipatti, Sathi Taluk,
Periyar District.
3. Tmt. Manonmani
W/o. Rajappan,
No. 32, Jegannathan St, Peelamedu,
Coimbatore 641 004.
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4. Navamani,
S/o. N.Rangasamy,
No. 4B/70 Kizhakku Thottam,
Balaji Nagar, Kannarpalayam,
Sikkarayampalayam Village,
Mettupalayam Taluk, Coimbatore District.
5. Sundarammal
W/o Late Rangasamy,
4B/70 Kannarpalayam, Kizhakku Thottam,
Balaji Nagar, Sikkarayampalayam Village,
Coimbatore Tk
6. R. Manoharan
S/o.Late Ramasamy,
D.No.31, Tatabad 2nd Street,
Sivananda Colony, Tatabad,
Combatore 641 012.
(R5 brought on record as LR of the deceased
R1 vide order dated 14.10.2022 made in
C.M.P. Nos.4512, 4515 and 4518 of 2021 in
A.S.No.615/2016)
(R6 impleaded as 6th Respondent vide order
dated 14.10.2022 made in C.M.P.No.11250 of
2022 in A.S.No.615 of 2016)
..Respondents
Appeal suit filed under Section 96 of Code of Civil Procedure
r/w Order XLI Rule 1 of C.P.C. against the judgement and decree dated
29.08.2016 made in O.S.No. 726 of 2008 on the file of the III Additional
District and Sessions Judge at Coimbatore.
For Appellants: Mr.M.K.Subramanian
for Mr.M.Santhanaraman
For Respondents: Mr.A.Sundaravadhanan for R2
Mr.C.Jagadish for R4
Mr.T.Dharani For R5
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AS No. 615 of 2016
Mr.T.Murugamanickam,
Senior Advocate
for Mr K.Goviganesan for R6
R1 – Died steps taken
R3 – Served. No appearance
JUDGMENT
(Judgment of the Court was delivered by C.V.Karthikeyan J.)
The plaintiffs in O.S.No.726 of 2008 on the file of the III Additional
District Judge at Coimbatore aggrieved by the judgment dated
29.08.2016 are the appellants herein. The said suit had been filed seeking
specific performance of an agreement dated 07.11.2007 entered into by
the appellants herein with the first and second defendants, N.Rangasamy
and Revathy, who are father and daughter with respect to the suit
schedule property measuring three acres out of a larger area of six acres
of agricultural land in S.F.Nos.404/1A and 404/1B at Sikkarayampalayam
in Mettupalayam. The total area of six acres originally belonged to the
first respondent herein, N.Rangasamy, who had acquired the same
through a registered partition deed dated 08.06.1972. He settled two
acres out of the total area of six acres with specific boundaries in favour
of his daughter, the second respondent by a registered settlement deed
dated 29.01.1986. Subsequently, the first defendant and his daughters
and son viz., the second, third and fourth defendants entered into a
partition deed on 10.04.2000 partitioning the remaining four acres among
them. By this partition, the first defendant came to be allotted one acre
and fifteen cents. The second defendant was allotted 2.85 acres and the
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third and fourth defendants have been provided Rs.5,000/-. By this
manner, the first and second defendants, who are the first and second
respondents herein and father and daughter became absolute owners of
the total area of six acres. Out of this total area of six acres, an
agreement of sale had been entered into with the plaintiffs on 07.11.2007
with respect to three acres on the western side with specific boundaries.
The sale consideration was determined at Rs.9,08,000/- per acre. The
agreement of sale was also written down on 07.11.2007. An advance sale
consideration of Rs.3,00,000/- had been paid at the time of execution of
the agreement. It was agreed that the sale would be effected within a
period of six months after partition had been effected among the
defendants. It was further contended that in the partition, the third and
fourth defendants had not been allotted any land but had been provided
with the amount of Rs.5,000/- each and therefore, they did not have any
right over the suit property. The said partition deed had also not been
challenged by either third or fourth defendants. They agreed to the
partition. They abided with the covenants in the partition deed. It had
been further stated that the plaintiffs had paid an additional advance of
Rs.50,000/- on 17.11.2007 and this was endorsed in the agreement of
sale.
2. The specific case of the plaintiffs/appellants is that it was the first
and second defendants/first and second respondents who sought time to
come forward to execute the sale deed since they want to survey the land
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2026:MHC:4279
AS No. 615 of 2016
demarcating the three acres by laying boundary stones. It was contended
that time was not the essence of the agreement since there were
obligations to be performed by the first and second defendants
particularly as aforestated to survey the land and lay boundary stones. It
was contended by the plaintiffs/appellants that they were always ready
and willing to partake with the balance said consideration and come
forward to purchase the land by way of a registered sale deed. The
plaintiffs thereafter sent a letter dated 05.02.2008 calling upon the first
and second defendants to execute the sale deed after the survey was
completed, after laying boundary stones and also providing a cart track to
access the land. The plaintiffs had also called upon the first and second
defendants to receive the balance sale consideration. A reply was issued
by the first defendant alone on 16.02.2008 that he would not be able to
execute the sale deed along with cart track and that he would be able to
sell the entire six acres of land. He also contended that the fourth
defendant, his son was in possession of the suit property and that he is
not dispossessed, he would return the advance amount. A rejoinder notice
was issued on behalf of the plaintiffs on 03.03.2008 wherein they again
reiterated their willingness to perform their part of the agreement and
insisted on specific performance of the agreement dated 07.11.2007.
However, the plaintiffs waited in view of the assurances held out by the
first defendant and thereafter, they filed a suit seeking specific
performance of the said agreement dated 07.11.2007.
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3. The first and second defendants had been initially set exparte
but subsequently they entered appearance and filed the written
statement. The third and fourth defendants also did not initially
participate in the trial proceedings. The first and second defendants in
their written statement and also incidentally in an additional written
statement which was also filed by them claimed that the third and fourth
defendants did not have any right or title over the suit property. They did
not dispute entering into the agreement on 07.11.2007. They claimed
that the third and fourth defendants were not required to be impleaded as
defendants in the suit. They stated that the property had been measured,
it had been demarcated and that boundary stones had also been fixed.
The terms of agreement relating to consideration was also admitted by
them. But then, they claimed that the plaintiffs were not ready and willing
to complete the sale transaction. It was also contended that the
agreement was only a contingent agreement namely that it could come
into effect only on partition being effected among the defendants and
therefore, it could not be specifically enforced. The third and fourth
defendants initially did not participate in the trial proceedings,
subsequently joined and also filed a written statement. They claimed that
they were entitled to an undivided three acres of land out of a larger area
of six acres and further claimed that the land was joint family property in
which they had an existing share. They also claimed that the first
defendant did not have any right to execute the settlement deed in favour
of the second defendant. They also stated that the settlement deed dated
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29.01.1986 was agreed to be cancelled and the parties would go in for a
fresh partition. It was also contended that a fresh partition was entered
into in the year 1999. It was stated that only owing to the views of an
astrologer, the property was kept in the name of the second defendant
but that would not grant title or right or interest over the property. They
claimed that the partition deed entered into among the defendants and
the settlement deed executed by the first defendant in favour of the
second defendant were not binding on them. They also claimed that they
had filed a suit seeking declaration of title over the suit property in
O.S.No.95 of 2008 before the District Munsif Court at Mettupalayam. On
the basis of the above pleadings, the learned Trial Judge had framed the
following issues and additional issues:
1.Whether the suit agreement dated 07.11.2007 is
true, valid and enforceable in law as against all the
defendants?
2. Whether the settlement deed dated 29.01.1986 is
not binding on the defendants 3 and 4?
3. Whether the partition deed dated 10.04.2000 is
not a true and valid partition deed?
4. Whether the pendency of the suit in O.S.No.95 of
2008 filed by the defendants 1 and 2 as against
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2026:MHC:4279
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defendants 3 and 4 is a bar for granting relief to the
plaintiffs in this suit?
5. Whether the plaintiffs are entitled to relief of
specific performance of the suit agreement dated
07.11.2007 as prayed by them?
6. Whether the plaintiffs are entitled to recover
vacant possession of the suit property from the
defendants?
7. To what other reliefs, the plaintiffs are entitled?
Additional Issues
1. Whether the suit is bad for misjoinder of parties?
2. Whether the suit is barred by limitation?
4. The parties were invited to tender evidence to substantiate their
respective claims. Accordingly, on the side of the plaintiffs/appellants
herein, the second plaintiff T.C.Nallasamy was examined as P.W.1 and he
marked Exs.A1 to A17. These included the settlement deed dated
29.01.1986/Ex.A2, the partition deed dated 10.04.2000/Ex.A3, the
agreement of sale dated 07.11.2007/Ex.A4 and the notices exchanged
between the parties/Exs.A7, A11 and A12. The endorsement for additional
advance in Ex.A4 was marked as Ex.A17. On the side of the defendants,
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2026:MHC:4279
AS No. 615 of 2016
the first defendant N.Rangasamy examined himself as D.W.1 and another
witness S.Govindaraj was examined as D.W.2. The defendants marked
Exs.B1 to B4. The encumbrance certificate of the property was marked as
Ex.B4.
5. On the basis of the aforementioned documents and evidence
tendered, the learned III Additional District Judge at Coimbatore while
examining the issues, had come to a conclusion that there could not be
an inference that the first defendant had refused to execute the sale deed
on the basis of the letter that he could not convey the land with a cart
track. It was also contended that the plaintiffs should have demanded
execution of the sale deed without provision of a cart track. It was also
contended that the plaintiffs did not exhibit necessary willingness to take
the agreement of sale Ex.A4 forward. It was also held that there was no
material produced to show that the plaintiffs were in possession of
balance sale consideration from the date of the agreement till they
actually filed the suit or even thereafter. It was however observed that
the plaintiffs had actually deposited the balance sale consideration but
that was after the suit had been decreed exparte in the initial stage of
trial. It was stated that this could not mean that the plaintiffs were ready
and willing to partake with the balance sale consideration from the date of
the agreement. There was also no document produced that the plaintiffs
had sufficient means to pay the balance sale consideration. In view of this
particular finding, the plaintiffs were primarily non-suited on the ground
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2026:MHC:4279
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that they were not ready and willing to pay the balance sale
consideration. Holding as above, the suit came to be dismissed.
6. Questioning these observations and findings, the plaintiffs have
filed the present appeal. It should also be noted that before this Court, it
had been informed that the fourth defendant/Navamani, one of the sons
of the first defendant had sold the property to a subsequent purchaser,
who had been impleaded as sixth respondent in the appeal suit. It should
also be noted that the first respondent/first defendant died and his widow
was brought on record as fifth respondent. Questioning the order
directing impleading of the subsequent purchaser, the appellants had filed
a further appeal before the Hon’ble Supreme Court but later they had
withdrawn the said appeal. The learned counsel had also entered
appearance on behalf of the sixth respondent.
7. Heard arguments.
8. Again, it transpired during the arguments that though the learned
Trial Judge had returned a finding that the appellants are not ready and
willing to partake with the balance sale consideration, and though six
issues had been initially framed and subsequently, two further issues had
been framed as additional issues, no specific issue had been framed on
the question of readiness and willingness. It was therefore initially argued
before this Court by the learned counsel for the appellants that a finding
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2026:MHC:4279
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had been rendered on the question of readiness and willingness when
there was no specific issue framed. It was further argued that the
agreement had been admitted by the first and second respondents in
their written statement and therefore, it should be held that if ever the
learned Trial Judge were to return a finding on the readiness and
willingness specifically, it should have been framed as an issue and if that
had been done, the appellants would have let in appropriate evidence on
that particular aspect. It was also brought to the notice of this Court that
initially, the suit had been decreed exparte and immediately thereafter,
the total sale consideration had been deposited in Court, which would
indicate that the appellants were possessed of the means and were also
willing to partake with those funds for the purpose of purchase of the
property. In view of this argument advanced, this Court, by an order
dated 08.12.2025, had exercised its power under Order XLI Rule 25 of
Code of Civil Procedure and permitted additional evidence to be adduced
by examination of further witnesses on the side of the appellants and also
granted permission to the respondents to lead rebuttal evidence purely on
the question of readiness and willingness. The appeal papers were
retained in this Court and the learned III Additional District Judge at
Coimbatore was directed to record further evidence. This Court had
framed further issue on readiness and willingness as follows:
‘Whether the plaintiffs were ready and willing to
perform their part of the agreement?’
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9. The records were forwarded back to the Trial Court for the limited
purpose of recording evidence on the aforementioned issue.
10. The learned Trial Judge was also directed to give a finding on
the evidence recorded by him. The learned Trial Judge should have given
only a finding but rather he had forwarded what he termed as a judgment
in the suit. At this juncture, we have to state that when the Appellate
Court frames an issue and forwards the records back to the Trial Court to
record evidence and directs the Trial Court to return a finding, the Trial
Court can never term those findings as a judgment of the Court under
Order XX of C.P.C. It is only reducing the observations regarding the
evidence. This is to enable the appellants and the respondents to advance
arguments again before the First Appellate Court on either the
correctness of the finding or otherwise and also on giving their analysis of
the additional evidence recorded. These findings on remand under Order
XLI Rule 25 of C.P.C. can never be termed as a judgment, which term
could only be used when there is a finality rendered on all the issues in
which the parties are at lis . This Court had retained the appellate records
and had directed the learned Trial Judge to record the evidence on an
additional issue framed and to give a finding on such issue. Be that as it
may, in the evidence recorded, the fact that the appellants herein had
deposited the balance sale consideration immediately after the suit had
been decreed exparte in the initial stage had been stated by the witness
and it was also noted that the fourth defendant who had sold the property
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to the sixth defendant had no manner of existing right or title over the
property to so convey the property. He was allotted only a sum of
Rs.5,000/- in the partition deed. The partition deed still holds good. It has
not been set aside by manner known to law. The suit which the fourth
defendant stated in his written statement which he had filed before the
District Munsif Court at Mettupalayam seeking declaration of title had
been subsequently, we have been informed, dismissed for non-
prosecution. Therefore, it is very evident that the fourth defendant had
conveyed the property when he had no such right. On the basis of these
facts, the following points would arise for consideration under Order XLI
Rule 30 CPC:
1. Whether the agreement dated 07.11.2007 is true,
valid, binding and enforceable?
2. Whether the appellants were ready and willing to
perform their part of the agreement by conveying the title
and sale consideration?
3. Whether the document conveying the property by
the fourth respondent in favour of the sixth respondent is
true, valid and could be upheld by the Court?
4. Whether the fourth respondent ever had any right
or title to so convey the property?
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11. The first two points framed for consideration will be answered
together.
12. The facts are not in dispute. The fact that the appellants herein
had entered into agreement of sale on 07.11.2007 with the first and
second respondents is not denied or disputed. The fact that under the
settlement agreement, the first plaintiff/first respondent had agreed to
convey an area of three acres out of a larger area of six acres is again
neither denied nor disputed. The fact that under the agreement, the sale
consideration was determined at Rs.9,08,000/- per acre is again neither
disputed nor denied. The fact that the advance amount had been paid
initially at the time of the agreement and subsequently, a sum of
Rs.50,000/- had also been paid towards the balance sale consideration,
which had been endorsed in the agreement of sale can also neither be
denied nor disputed. The fact that initially the first and second
respondents herein had been set exparte and that after the exparte
decree had been passed, the appellants had deposited the entire balance
sale consideration into the Court is again a fact which is neither denied
nor disputed.
13. The only reason why the learned Trial Judge had non-suited the
appellants is on a presumption that had the appellants come forward to
purchase the property without insisting on formation of a cart track then
there could have been an execution of a contract. This is a finding based
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on presumptions. The appellants in their notice had stated that the
property should also be conveyed with a cart track to provide access. It is
only natural that a cart track was demanded. If the property is part of the
larger area of six acres, to access the property, naturally, cart track is
required. It is also to be kept in mind that they are agricultural lands. For
the purpose of agriculture and for the purposes of any activity relating to
agriculture, a cart track is required to access the property. It is also seen
from the records that the parties had been holding discussions regarding
conducting survey of the land and laying boundary stones over the land.
This would indicate the willingness of both the parties to the agreement to
actually ensure that the agreement is performed by both of them. It
should also be kept in mind that it was the fourth respondent, who was in
possession and therefore, a request was made by the first respondent
that he should be evicted from the property. The agreement therefore
having been lawfully entered into for a lawful consideration with a lawful
object with a property which is identifiable can only be said to be a valid
agreement. Once advance consideration had been passed and when the
receipt of the advance consideration had not been denied by the first and
second respondents and when the first and second respondents have title
to convey the property, then the valid agreement also becomes a binding
agreement. It necessarily has a binding effect on both the parties to the
agreement to perform their respective parts of their obligations. The
appellants had to pay the balance sale consideration and the respondents
had to come forward with the execution of sale deed. One factor which
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came in the way was the presence of the fourth respondent. It should
also be noted that initially the first respondent was the owner of the total
area of six acres and had settled two acres of land in favour of the second
respondent/daughter. Thereafter, with respect to the balance four acres,
a partition deed was entered into among all the four respondents and the
first respondent was allotted 1.15 acres and the second respondent was
allotted balance 2.85 acres. The third and fourth respondents were
provided with a sum of Rs.5,000/- each. Neither the third and fourth
respondents had raised a lawful plea that the partition has to be set aside
since they had not been allotted with necessary property. It was an
agreement among the parties. Under the said agreement, the fourth
respondent was paid a sum of Rs.5,000/- alone. The total area of six
acres therefore got crystallised with the first and second respondents
alone. They had therefore every right to enter into an agreement with the
appellants. The agreement therefore not only becomes valid, it becomes
binding and it becomes enforceable.
14. The finding of the learned Trial Judge that the appellants did not
have any means to pay the balance sale consideration is a finding which
is based on no evidence and for which no issue had also been framed.
Order XIV of the C.P.C. stipulates that the Trial Court should frame an
issue on a fact asserted and a fact denied. There had been no issue
framed on readiness and willingness. This Court can therefore very well
conclude that such an issue was not framed since it was not a fact denied
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by the respondents. When it is not the fact denied by the respondents,
the learned Trial Judge should not have returned a finding that the
appellants were not ready and willing to perform their part of the
agreement. In view of these reasons, we are not in agreement with that
finding by the learned Trial Judge. Our view in this regard is further
fortified by the additional evidence tendered on matter being remanded
under Order XLI Rule 25 of C.P.C. A clear finding had been returned that
the total consideration is now in Court deposit. We therefore hold with
respect to first and second points that the agreement is valid, that the
agreement is lawful, that the agreement is binding and that the
agreement is enforceable and that the first and second respondents had
every right to enter into such an agreement.
15. With respect to the points 3 and 4 framed, we would again fall
back to the partition deed entered into among the parties whereby the
fourth respondent was provided only with a sum of Rs.5,000/-. By receipt
of said Rs.5,000/-, he had given up all rights over the land. He can never
claim to be a title holder or a person with right to convey the land. The
sixth respondent had purchased the property from the subsequent
purchaser of the land. No title can flow to the sixth respondent when the
vendor/fourth respondent did not have any valid title to so convey the
property in the first instance. All subsequent purchasers did not acquire
valid title. It becomes an issue of a person with no title conveying land
and by no stretch of imagination the purchaser can ever claim to have
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title over the property. The remedy which the sixth respondent will have
is only to enforce the clause of indemnity as against his vendor and
ultimately the fourth respondent.
16. The points framed are answered and the fourth respondent did
not have any right, title or interest over the property and that therefore
the sale deed executed by him in favour of the sixth respondent would be
of no value and is void and is null and it has to be declared as non-est in
the eyes of law. When an execution petition is filed, it is only proper that
the sixth respondent is impleaded as further party and directed to
participate in the final decree proceedings as a confirming party.
17. In view of the above reasons, we would set aside the judgment
and decree of the Trial Court and decree the suit. We would call upon the
second and fifth respondents and also the sixth respondent to come
forward to execute the sale deed in favour of the appellants herein within
a period of three months from the date of this order. The second and fifth
respondents are entitled to withdraw the sale consideration with interest
in the deposit in Court on Sale Deed being executed. The appeal suit is
allowed. There shall be no order as to costs.
(C.V.K.,J.) (R.S.V.,J.)
15.10.2026
Index: Yes
Neutral Citation: Yes
mmi/ve
To
The III Additional District and Sessions Judge, Coimbatore.
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C.V.KARTHIKEYAN, J.
AND
R.SAKTHIVEL, J.
mmi
AS No. 615 of 2016
15.10.2026
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