P C VARGHESE Vs. DEVAKI AMMA BALAMBIKA DEVI

JUDGEMENT

(1.) The First Respondent herein is the wife of K.R. Narayana Pillai (Respondent No.5). Respondent Nos. 2 and 3 are daughters of the First and the Fifth Respondent herein. The Fourth Respondent was their minor daughter. 15 cents out of the land in question measuring 19 cents were obtained by Respondent Nos.1 to 3 by reason of a partition under deed No.1598 of 1973. As Respondent No.4 was born subsequent to the execution of the said deed of partition, she became entitled to a one-fourth share in 15 cents which comes to 3.75 cents. The balance 4 cents absolutely belonged to the First Respondent on the death of one Narayana Pillai and Devaki Amma. Respondent Nos.1 to 3 and 5 agreed to sell the said property to the Appellant herein, wherefor an agreement of sale was executed on 13-09-1980 in his favour. In terms of the said agreement, a sum of Rs.5,05,000/- was fixed as total consideration; and a sum of Rs.10,000/- was received by the Respondents by way of advance. The agreement contained a condition that the Respondents would obtain requisite permission from the appropriate court for sale of the minors share therein. Such permission was to be obtained within a period of three months which was also the period fixed for performance of the terms of the agreement. However, an extension thereof had been granted. The Appellant made several requests to the Respondents to perform their part of contract. According to him, the Respondents had deliberately been delaying the disposal of the application for obtaining the aforementioned permission. A letter was also sent to the Fifth Respondent requesting him to get the sale deed executed at least with regard to the shares of Respondent Nos.1 to 3 on receipt of proportionate amount of consideration and to execute the sale deed relating to the minors share after such permission was obtained.

(2.) The Respondents, however, did not perform their part of contract. The Appellant deposited a sum of Rs.5,00,000/- in his name and in the names of his wife and children in fixed deposit No.28517-57-81 dated 03-08-1981 in the Federal Bank Limited. He also served a registered notice through his advocate asking the Respondents to execute the sale deed, in respect whereto a reply was sent by the Respondents stating that the sale deed can be executed only after obtaining the permission from the Court.

(3.) The Appellant filed the suit against the Respondent Nos. 1 to 5 herein, inter alia, for a decree of specific performance of contract in respect of the said agreement of sale in respect of the entire 19 cents. He also made an alternative prayer, as per para 23C praying that if specific performance could not be granted in regard to entire extent, he may be allowed to take a sale deed in respect of the share of Defendants 1 to 3 and may be allowed to recover possession of that much property from defendants through Court.