NARAYANAN NAIR RAMAKRISHNAN NAIR Vs. ZACHARIA KURIAKOSE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Sub Court, Pathanamthitta in O.S.NO.47 of 1980. The suit was for specific performance of the agreement for sale.

(2.) The plaint averment may briefly be stated as follows: Plaint Schedule item No.1 and plaint schedule item No.II building, thereon belonged to the 1st defendant subject to the life-interest of the 2nd defendant. Defendants 1 and 2 executed an agreement evidenced by Ext. A1 dated 17-10-1979 agreeing to sell the plaint schedule Item 1 for a sum of Rs. 16,750/- and also agreed to demolish and remove the building shown as item II in the plaint schedule Item 1, at the time of sale and hand over possession of the property to the plaintiff and received a sum of Rs.3,000/- as advance. The plaintiff was always ready and willing to pay the balance consideration and get the sale deed executed in his favour. The defendants refused to execute the sale deed on receipt of balance of consideration. In the circumstances the plaintiff issued a notice on 22-4-1980 to the defendants land 2 calling upon them to receive the balance of consideration and execute the sale deed on or before 26-4-1980. As per the terms of the notice, he presented himself before The Sub Registrar Office, Ranni, on 26-4-1980, but the defendants did not turn up for executing the document. They sent a reply Ext. A2 dated 2-5-1980 stating that the property was attached in O.P.No.20 of 1980 on the file of the Munsiffs Court, Pathanamthitta, that therefore they were unable to execute the sale deed and that they were ready to execute the sale deed as soon as the matter was decided in their favour. On enquiry it was found that the 1st defendant's wife filed the above O.P. which was renumbered as O.A.No.79 of 1981 for recovery of amount of maintenance and attachment of property was made to the extent of Rs.3,600/-. In the circumstances, wife was impleaded in this suit as the 3rd defendant. The 3rd defendant had no right to recover any amount charged on the plaint property, and the right of the plaintiff would not be affected by the attachment. O.P. was filed at the instigation of the 1st defendant to defeat the interest of the plaintiff. The .plaintiff issued another notice evidenced by Ext.A8 dated 27-5-1980 stating that he was ready to take the sale deed with the attachment or pay the amount for which attachment was made and requested the defendants to execute the deed on 16-6-1980. But even then the defendants did not execute the document. In these circumstances the suit was filed seeking a decree for specific performance of the agreement, directing the defendants land 2 to execute the sale deed in favour of the plaintiff on receipt of the balance of consideration which the plaintiff deposited in Court or in default to get the document executed through Court.

(3.) In the written statement filed by defendants 1 and 2 they contended that though Ext.A1 recites consideration as Rs.16,750/- the actual consideration agreed upon by the parties was Rs.30,000/- that in the agreement only a small amount was recited as consideration because of the confidence of the defendants in the plaintiff and that no amount was paid as advance as alleged in the plaint or recited in Ext.A1. It was also stated in the written statement that the plaintiff was not ready to obtain the sale deed upto the date of attachment made by the 3rd defendant, that according to the agreement the sale deed had to be obtained within a period of six months and that on account of the failure on the part of the plaintiff to get the document executed within the specified date on payment of consideration, the agreement became unenforceable. It was further averred that the 3rd defendant filed O.P. for maintenance and in view of the provisions contained in S.22(1) (2) of the specific Relief Act, the agreement became ineffective or inoperative and that in the circumstances the plaintiff was not entitled to any relief and that the suit was liable to .be dismissed.