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Appasamy Mudaliar and ors. Vs. Sundaram Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtChennai
Decided On
Reported in(1936)71MLJ223
AppellantAppasamy Mudaliar and ors.
RespondentSundaram Pillai and ors.
Cases ReferredVide Smith v. Baker
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. .....to recover possession of the half share from the defendants. the defendants allege that the sales by ayyasami were made under circumstances which will bind the sixth defendant and his subsequent conduct also estops him from impeaching their validity. it is admitted that the patta for the entire lands stands in the name of the said ayyasmi.2. the learned district munsif found that ayyasami and the sixth defendant were divided in status and the sales would not ordinarily be binding on the sixth defendant. but by his conduct as evidenced by exs. i and ii in the case he must be deemed to have ratified the sales. the learned subordinate judge came to a different conclusion.3. two questions fall to be decided, viz., (i) was ayyasami competent to sell the entire property so as to bind.....
Judgment:

Venkataramana Rao, J.

1. The suit out of which this Second Appeal arises was instituted by the plaintiffs for recovery of a half share in the suit properties under a deed of gift dated 16th September, 1926, executed in their favour for and on behalf of a trust by the sixth defendant. Defendants 4 and 5 claimed title to item 2 of the suit property under a deed of sale Ex. XV dated 7th May, 1920, executed by one Ayyasami in their favour. Defendants 2 and 3 are mortgagees from defendants 4 and 5 of the said property. The first defendant claims items 1 and 3 under a sale deed Ex. XIV dated 17th June, 1921, from the said Ayyasami. Ever since that date of the sales the alienees have been in possession of the property. The case for the plaintiffs is that Ayyasami and sixth defendant Muruga pillai were members of a joint family who became divided in status and each was entitled to a several half share in the property, that the deeds of sale executed by Ayyasami are not binding on the sixth defendant's half share, that by virtue of the gift deed in their favour they are entitled to recover possession of the half share from the defendants. The defendants allege that the sales by Ayyasami were made under circumstances which will bind the sixth defendant and his subsequent conduct also estops him from impeaching their validity. It is admitted that the patta for the entire lands stands in the name of the said Ayyasmi.

2. The learned District Munsif found that Ayyasami and the sixth defendant were divided in status and the sales would not ordinarily be binding on the sixth defendant. But by his conduct as evidenced by Exs. I and II in the case he must be deemed to have ratified the sales. The learned Subordinate Judge came to a different conclusion.

3. Two questions fall to be decided, viz., (i) was Ayyasami competent to sell the entire property so as to bind the sixth defendant? and (ii) assuming he was not authorised is the sixth defendant precluded from impeaching the validity of the sales? No doubt one tenant-in-common cannot sell more than his share of the common property and any conveyance in excess thereof will not be binding on his co-tenants. But it is open to a tenant-in-common to authorise his co-tenant to sell his share of the property. The authority may be expressed or implied. The patta stands in the sole name of Ayyasami and a sale by him with the consent or authority of sixth defendant will be operative to pass the entire interest in the property including that of the sixth defendant.

4. Ex. II is a letter dated 10th November, 1923, written by the sixth defendant to Ayyasami in which he states that he has asked Ayyasami to sell the said properties and discharge a mortgage due to one Muthukrishna Pillai which is evidenced by Ex. IV in the case. It is a distinct admission on the part of the sixth defendant that he has authorised the sale of the suit property. It is contended that what he authorised was to sell the property for the purpose of discharging the said mortgage debt and not for any other purpose; but in the sale deeds there is a recital that they were effected for the purpose of discharging a debt due to one Dhandava Nainar. Therefore as he has acted in excess of the instructions the sale could not be said to have been effected with due authorisation from the 6th defendant. This argument is not tenable. The fact that a purpose other than the one intended by the sixth defendant was recited in the sale deeds or that Ayyasami did not carry out the instructions given to him, namely, the discharge of Ex. IV with the said money will not vitiate the sale. What is required was authorisation to effect the sale, and not a proper application of the purchase money. It seems to me therefore that the sales by Ayyasami will be binding on the sixth defendant and therefore on the plaintiffs.

5. Assuming that the said sales are not binding as unauthorised the question is, has the sixth defendant precluded himself from attacking them? It is open to the sixth defendant to elect to confirm the said sales and call upon Ayyasami to account for the money or to repudiate the sales and sue to recover possession of the property from his alienees.

6. On the 10th of October, 1923, a year or two after the sales and after becoming aware of them the sixth defendant addressed a letter Ex. I to the mortgagee under Ex. IV to the effect that Ayyasami has sold the property for Rs. 300 and asked him to take that money from him in discharge of his mortgage and that he is sending his own younger brother to see that Ayyasami pays the money. He also addressed another letter Ex. II bearing the same date to his own brother in which he says that he will take him to task for not paying the mortgage with the sale proceeds of the land which he has directed him to sell, and that he is sending his younger brother to see to its payment and requested him to pay the money immediately.

7. The learned Subordinate Judge was of opinion that Ex. IV was not binding on the sixth defendant. In this finding he is wrong. In the face of the distinct admissions in Exs. I and II his finding cannot be supported and he has not adverted to them in dealing with the binding nature of Ex. IV. His finding in respect of Ex. IV cannot stand and Ex. IV must be treated as a valid transaction binding on the sixth defendant.

8. Subsequent to Exs. I and II it will be seen that on the 16th January, 1924, Ayyasami paid a sum of Rs. 366 in part discharge of Ex. IV which is evidenced by the endorsement Ex. IV-A. The lower Courts have taken the view that it is not proved that with the actual sale proceeds the said mortgage was discharged. It is quite unnecessary. The sixth defendant had a right to call upon Ayyasami to account for his share of the sale proceeds. He did call upon him and requested him to apply the proceeds in a particular manner. It was accordingly done. Whether Ayyasami paid the identical sale proceeds or some other money is immaterial. The question is had the sixth defendant derived any advantage from the sale of the suit lands. He did derive a benefit in that Ex. IV was discharged. What constitutes an act of election is in each case a question of fact. The request of the sixth defendant to apply the purchase money, the compliance with the same by Ayyasami, the discharge of Ex, IV and the resulting benefit to the sixth defendant, and the conduct of the sixth defendant, not taking any steps to repudiate the sales for a period of five years are enough to show that the sixth defendant has elected to ratify the sales and his election has been conclusively determined. It is not open to a person to confirm a transaction and obtain a benefit therefrom and then turn round and repudiate it. Vide Smith v. Baker (1873) 8 Com. Pleas. Cases. 350. The sixth defendant and the Plaintiffs who claim under him are therefore precluded from impeaching the validity of the said sales.

9. I therefore reverse the decree of the Subordinate Judge and restore the decree of the District Munsif with costs in this Court. Leave refused.


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