(1.) The plaintiffs' suit for specific performance was dismissed by the Munsiff of Madhugiri. His judgment was reversed on appeal by the Subordinate Judge of Tumkur who has made a decree in favour of the plaintiffs as prayed for. Defendants 2 to 5 have come up in second appeal.
(2.) The plaintiffs' case is that defendant 1, who was admittedly the owner of the land, had agreed to sell the schedule property to him for Rs. 850/-. He had received an advance of Rs. 100/- and had executed a consideration receipt Ex. A dated 20-6-47, promising to receive the balance of Rs. 750/- before the Sub-Registrar after executing a proper registered sale deed. The suit was brought by the plaintiffs on 7-7-1947 originally against defendant 1. Some days later by an application dated 14-3-1947 the plaintiff sought for permission and impleaded defendants 2 to 5 as supplemental defendants on finding that defendant I had on 7-7-1947 conveyed the suit property to them for Rs. 1,125/- and executed a sale deed Ex. C in their favour. Defendant 1 was ex parte. Defendants 2 to 5 denied knowledge of the prior agreement in favour of the plaintiffs and pleaded that they were bona fide purchasers for value without notice of that prior agreement and that the plaintiffs could, not therefore enforce the same against them.
(3.) Both the Courts below have found that Ex. A is genuine and that defendant 1 had agreed to convey the suit property to the plaintiffs on 20-6-1947 and received Rs.100/- as advance. That finding is not challenged before me. It cannot also be seriously disputed that the plaintiffs have all along been ready and willing to perform their part of the contract by paying the balance of the purchase money and obtain a sale deed. Plaintiff 2 examined as P.W. 5 has sworn that on the fourth day after the date of Ex. A the plaintiffs tendered the amount of Rs. 750/- to defendant 1 in his village, Maruvekere, and asked him to execute the sale deed. Defendant 1 then took time for 2 or 3 days. They went to him again after 2 days and defendant 1 told them that he would execute the sale deed on the last date agreed and not earlier. On the final due date they went to defendant 1 in the morning and asked him to execute the sale deed. He asked them to go to Madhugiri, which is said to be about six miles away, in advance and that he would meet them near the Sub-Registrar's office. They waited near the Sub-Registrar's office till 4 p.m. that day and as he did not turn up they consulted a lawyer and sent the notice Ex. B dated 30-6-47 and a sum of Rs. 750/- to defendant 1 by telegraphic money order. They accompanied the Postman along with P.W. 2 to defendant I who was then in his field, ploughing. Defendants 4 and 5 also were present there. The plaintiffs pointed defendant 1 to the postman who tendered the notice Ex. B and also offered the amount of the money order. Defendant 1 refused to receive both, and an endorsement was made to that effect as per Ex. D1. Then they filed this suit as soon as the Court opened on Monday 7-7-1947. On 8-7-1947 defendant 1 had a notice Ex. F issued through a lawyer and returned the advance of Rs. 100/- by money order. In Ex. F he stated that as misunderstandings in the matter of sale had arisen, defendant 1 had returned the advance and wanted the karar back. Defendant 1 has not been examined by defendants 2 to 5, and there is no explanation as to what that misunderstanding was and how he was justified in backing out of the contract. The plaintiffs have therefore been thoroughly prompt and willing to perform their part of the contract by paying the balance of purchase money and taking the sale deed and are clearly entitled to obtain specific performance against defendant 1.