PERIYANAYAGAM Vs. RAJENDRAN

JUDGEMENT

(1.) THESE second appeals have been preferred by Periyanayagam, who figured as second defendant in O.S. No.290 of 1978, District Munsif's Court, Cuddalore, and the plaintiff in O.S.No.97 of 1977 before the same Court. S.A.No. 1668 of 1980 arises out of O.S.No. 290 of 1978 wherein the reliefs of declaration of title and recovery of possession with reference to two items of properties had been prayed for by respondents 1 and 2 therein. S.A.No. 1669 of 1980 arises out of O.S.No.97 of 1977 instituted by the second defendant in O.S.No.290 of 1978 with reference to one out of two items forming the subject matter of O.s.No.290 of 1978, praying for the relief of permanent injunction. The two items of properties forming the subject-matter of these second appeals are of an extent of 1.06 acres in survey No. 1087/1 and western 85 cents out of a total extent of 2.85 acres in survey No. 1082/6 in the hamlet of Vekakollai. The third respondent in S.A.No. 1668 of 1980, namely, Pachamuthu is the father of respondents 1 and 2 therein and first respondent in S.A.No. 1669 of 1980. Under Ex.A-1 dated 27.7.1966, Pachamuthu, acting as the guardian of this minor sons Rajendran and Rajagopal, purchased item 1 of the suit properties from one Narayanaswami for a consideration of Rs. 500. This sale deed, it is not in dispute, had been attested by the appellant in these second appeals. Likewise, under Ex.A-2 dated 6.4.1967, item 2 of the suit properties was purchased by Pachamuthu acting as the guardian of his minor sons Rajendran and Rajagopal for a consideration of Rs. 150. On 10.2.1969, under Ex.B-1, Pachamuthu purported to sell both the items of properties purchased under Ex.A-1 and A-2 in favour of the appellant for a consideration of Rs. 500. The sale deed recited purchase of other properties as the reason for the sale. On 11.2.1977, first respondent in these second appeals, under Ex.A-3, purported to lease out item 1 in favour of Murugavel, who figures as fourth respondent in S.A.No. 1668 of 1980 and as second respondent in S.A.N0. 1669 of 1980. Immediately thereafter, the appellant instituted on 19.2.1977 O.S.No.97 of 1977 praying for a decree for permanent injunction against respondents 1 and 4 in S.A.No. 1668 of 1980 and the respondents in S.A.No. 1669 of 1980 on the ground that he had purchased that item under Ex.B-1 dated 10.2.1969 and his possession and enjoyment thereof was attempted to be interfered with unlawfully by the lessee under Ex.A-3. On 1.7.1978, respondents 1 and 2 in S.A.No. 1668 of 1980 instituted O.S.No. 290 of 1978 praying for a declaration of their title to the suit properties and for recovery of possession. According to them, they were the owners of the properties, but that their father had sold the suit properties on 10.2.1969 while they were minors without the prior permission of the Court and by reason of the execution of the lease deed on 11.2.1977, they had asserted their title to the suit properties and since they were not bound by the sale deed executed by their father Pachamuthu and that had also been avoided rendering it a void transaction, they continued to retain title over the properties and on that footing prayed for the reliefs of declaration and injunction. In the suit O.S.No.97 of 1977, the defence was that the sale deed executed by Pachamuthu was voidable and had also been avoided thereby rendering it void since its inception and, therefore, the appellant did not have title by reason of the purchase under Ex.B-1. The defence of the appellant in O.S.N0. 290 of 1978 was that he had acquired title to the suit properties by purchase from Pachamuthu under Ex.B-1 dated 10.2.1969 and was also in possession as a lawful owner thereof. Since common questions arose for decision in O.S.Nos. 97 of 1977 and 290 of 1978, they were tried together and the evidence recorded in O.S.No. 290 of 1978 was treated as the evidence in O.S.No. 97 of 1977.

(2.) ON a consideration of the oral as well as the documentary evidence, the trial Court concluded that the sale deed under Ex.B-1 dated 10.2.1969 by Pachamuthu was a voidable transaction and required to be set aside and as respondents 1 and 2 in S.A.N0. 1668 of 1980 had not prayed for the relief of setting aside the sale under Ex.B-1, they were not entitled to the relief of declaration of their title to the suit properties. Regarding item 1 of the suit properties, as possession of that item was admitted to be with the appellant in these second appeals, the trial Court held that the respondents in S.A.No. 1669 of 1980 could not disturb his possession and on those conclusions, a decree was granted in O.S.No. 97 of 1977, while O.S.No. 290 of 1978 was dismissed. Aggrieved by this, respondents 1 and 2 in S.A.No. 1668 of 1980 and the first respondent in S.A.No. 1669 of 1980 preferred A.S.Nos. 188 of 1979 and 64 of 1980 before the Sub Court, Cuddalore. The learned Subordinate Judge was of the view that the institution of the suit O.S.No.290 of 1978 was itself an act of avoidance rendering the sale under Ex.B-1 as void since its inception and, therefore, the suit without a prayer for setting aside the sale under Ex.B-1 was maintainable. With reference to item 1 of the suit properties, the possession of the appellant in these Second Appeals was held to be that of a trespasser and in that view, the lower appellate Court held that no decree for injunction could be granted in favour of a trespasser. ON those conclusions, the appeals were allowed and O.S.No. 290 of 1978 was decreed, while O.S.N0. 97 of 1977 was dismissed. It is the correctness of this that is questioned in these second appeals.

(3.) THE exercise of an option to avoid can be manifested in any manner, as no particular method of avoidance has been prescribed. In some case, such avoidance may be by specifically praying for the relief of setting aside the transaction and seeking further or other reliefs. In others, such avoidance may take the shape of treating the transaction as if it is not in existence and on that footing proceeding to ask for other available reliefs. In KALLUBANDI NANJAMMA v. KETHE RANGAPPA, (1953)2 M.L.J. 737, VENKATARAMA AYYAR, J., held that a decree-holder entitled to avoid a transfer of property under Sec.53 of the Transfer of Property Act, (which is voidable at the option of a creditor defeated or delayed) elected to do so by bringing the properties to sale in execution of the decree and that avoidance would ensure for the benefit of others. THE Supreme Court, in ABDUL SHUKOOR SAHEB v. PAPA RAO, (1964)1 M.L.J. (S.C) 49, while dealing with the scope of avoidance of a transfer under Sec.53 of the Transfer of Property Act pointed out that no particular method of avoidance had been prescribed and that a creditor knowing of a transfer applies for attachment, that is evidence of his intention to avoid it. It is thus clearly established by the aforesaid decisions that avoidance or repudiation need not necessarily be only by way of specifically praying for the relief with regard to setting aside a transaction repudiated, but it can take diverse forms as well. On the facts of this case, as seen earlier, under Ex.A-3, dt. 11.2.1977, there has been an avoidance of the transfer by one of the plaintiffs asserting his title to the properties dealt with thereunder despite Ex.B-1 executed by the father as his guardian and this is sufficient avoidance or repudiation. In any event, the allegations in the plaint referred to earlier would clearly amount to a repudiation of the sale executed by the father of the minors under Ex.B-1 and a formal prayer for the relief of setting aside Ex.B-1 is, on the facts of this case, wholly unnecessary. On the repudiation contained in Ex.A-3 and in the plaint, the sale under Ex.B-1 had been avoided since its inception and that would have the effect of rendering it void and there was, therefore, no impediment in the plaintiffs securing the reliefs of declaration of their title to the suit properties and also recovery of possession as prayed for by them in Q.S.N0. 290 of 1978. It follows that if the plaintiffs in O.S.No.290 of 1978 are entitled to the reliefs prayed for by them, the plaintiff in O.S.No.97 of 1977 is not entitled to the relief of permanent injunction. THE lower appellate Court was right in its conclusion that the appellant in these Second Appeals cannot claim any title to the suit properties on the strength of Ex.B-1 and also cannot be permitted to maintain his possession of the suit properties. Consequently, the Second Appeals fail and they are dismissed with costs in S.A.No. 1668 of 1980 only.