MOIDEENKUTTY HAJI Vs. PAPPU MANJOORAN

JUDGEMENT

(1.) This appeal is by a defeated defendant the 1st defendant in a suit for money based on a promissory note. The court below, on a consideration of the evidence before it, has decreed the suit. The 1st defendant has come up in appeal.

(2.) The background facts leading to the suit and the appeal are briefly as follows: The plaintiff, his brothers and brother inlaw together owned certain properties in Purathur Village, comprised in R.S. 8/1A1, 8/1A2 and 8/1A3. Pappu Manjuran, the 1st plaintiff had powers of attorney from his brother Abraham Tharakan and his brother inlaw M. V. Thomas. On the basis of the rights which had vested in the above persons under the various documents executed in their favour (an enumeration of which is given in Ext. B-7, dated 2nd January 1979 as document Nos. 12, 15, 16 and 18 of 1959, 354 of 1965 and 29 of 1969), they entered into an agreement Ext. B-1 on 25th July 1978. The admitted case is that, that agreement visualised two distinct portions to be performed within separate periods. One of the stipulations was that within a period of three months, the property in survey Nos. 8/1A1, 8/1A3 and one acre in 8/1A2, had to be transferred to the defendants on payment of a consideration of Rs. 4 lakhs. The remaining properties had to be transferred within an outer period of one year from the date of the execution of the agreement, on payment of balance consideration. It is agreed that on 21st October 1978 a sum of Rs. 4 lakhs was paid and the defendants were put in possession of the properties in R.S. 8/1A1 and 8/1A3 and one acre in 8/1A2. According to the plaintiffs, the defendants desired to have a larger extent in R.S. 8/1A2 and the buildings therein. The sale consideration for that area, which is outside the agreement, was fixed at Rs. 1,50,000. This property was given possession of to the defendants, and the consideration thereof was met by the execution of the promissory note Ext. A-1.

(3.) The main plea of the 1st defendant was that the composite agreement had to be executed by conveying the entirety of the property covered by the agreement, that the 1st plaintiff himself cancelled the agreement by his letter Ext. B-10, dated 21st July 1979, that the enforcement of the agreement was thus rendered impossible by the 1st plaintiff's own action, and that the payment which could be contemplated under Ext. B-1 was therefore unenforceable. The circumstance under which the promissory note was executed according to the plaintiffs had been detailed in Para.2 of the plaint. The story of the 1st defendant in relation to the circumstances in which Ext. A-1 was executed, mentioned among other things, the fact that Pappu Manjuran wanted some documents to convince his own brothers about the realisation of a portion of the remaining consideration and that the promissory note was executed to please him and appease his brothers.