ANIGLASE YOHANNAN Vs. RAMLATHA

JUDGEMENT

(1.) The defendant in a suit for specific performance of contract questions correctness of the judgment rendered by a Full Bench of the Kerala High Court holding that the plaintiff-respondent no.1 is entitled to a decree in the manner prayed for. Though the Trial Court held that the requirements of Section 16(c) of the Specific Relief Act, 1963 (in short the Act) were not complied with and plaintiff was entitled only to the money paid, in appeal by the plaintiff, learned Single Judge of the High Court as well as in appeal before the Full Bench of the High Court, held otherwise. Plaintiffs suit for specific performance was decreed.

(2.) The factual background as highlighted by the original plaintiff, who after his death was substituted by additional plaintiffs nos. 2 to 5 (respondents herein) is essentially as follows : The suit was filed by the plaintiff for specific performance of Ext. A1 agreement for sale. His case is that the defendant executed Ext.A1 agreement in his favour agreeing to sell the suit property for a consideration of Rs.12,000/-. An advance of Rs.8,000/- was paid on the date of the agreement i.e. 15-2-1978. The period fixed for the execution of the sale deed was six months from the date of the agreement. Though the plaintiff was ready and willing to perform his part of the contract, the defendant was not prepared to execute the sale deed. The defendant resisted the suit contending that though he executed Ext. A1 agreement in favour of the plaintiff, it was executed only as security for the amount paid by the plaintiff to him. It was also contended that the property covered by the agreement is owned by the defendant and his wife jointly and since the property has not been partitioned, the defendant had no legal right to enter into an agreement for the sale of the entire property. The defendant further pleaded that on 15.2.1978 itself, (Ext.B1) the plaintiff had executed an agreement in favour of the defendant agreeing not to enforce the specific performance of the agreement. On these contentions, the defendant wanted the suit to be dismissed.

(3.) The suit was originally decreed by the trial Court. On appeal filed by the defendant as A.S. No.227/1980, the High Court set aside the decree and judgment of the trial Court and remanded the case for the purpose of considering the genuineness of Ext.B1 document. After remand Ext.B1 agreement was sent for expert opinion and Ext. C1 report was obtained. The trial Court found that the plaintiff was not the author of Ext.B1 and Ext.A1 agreement was not executed as security for the repayment of the amount advanced, as contended by the defendant. But, the trial Court denied the relief of specific performance of the contract on the ground that the plaintiff has failed to plead and prove that he is still ready and willing to perform his part of the contract. However, the plaintiff was given a decree for realization of a sum of Rs.8,000/- paid as advance with 6% interest per annum from 15-2-1978. Dissatisfied with the decree, the additional plaintiffs 2 to 5 filed appeal before the High Court.