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Kamakshi Nayakan Vs. Ramasami Nayakan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1897)7MLJ131
AppellantKamakshi Nayakan
RespondentRamasami Nayakan and anr.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. .....that the hypothecation bond is not binding, the action is barred.2. as regards the rest of the claim, the mortgage and sale relied upon executed by the plaintiff's mother and guardian are void as against him except in so far as they can be shown to be for his, benefit or executed under circumstances otherwise rendering them binding upon him. therefore in this suit for possession of the property comprised in such deeds, it is unnecessary for the plaintiff to set them aside as a condition precedent to a decree for possession we think, therefore, that neither article 44 nor article 91 applies.3. we must, therefore, modify the decree of the district judge as to the possession of the land referred to in the mortgage and sale, and direct the appeal to be heard on the merits and disposed of.....
Judgment:

1. So far as the claim for a declaration that the hypothecation bond is not binding, the action is barred.

2. As regards the rest of the claim, the mortgage and sale relied upon executed by the plaintiff's mother and guardian are void as against him except in so far as they can be shown to be for his, benefit or executed under circumstances otherwise rendering them binding upon him. Therefore in this suit for possession of the property comprised in such deeds, it is unnecessary for the plaintiff to set them aside as a condition precedent to a decree for possession We think, therefore, that neither Article 44 nor Article 91 applies.

3. We must, therefore, modify the decree of the District Judge as to the possession of the land referred to in the mortgage and sale, and direct the appeal to be heard on the merits and disposed of according to, law. The respondents must pay and receive the proportionate costs of this appeal.


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