YOHANNAN Vs. HARIKRISHNAN NAIR

JUDGEMENT

(1.) This appeal is filed against the judgment and decree of the Sub Court, Trivandrum in O.S. No. 287 of 1985. The suit is for specific performance of an agreement for sale.

(2.) Briefly stated the plaint averments are as follows : Defendants 1 and 2, who are the owners of plaint schedule property, agreed to sell the property to the plaintiffs for a consideration of Rs. 3,00,000/- and executed an agreement in their favour on 21-1-1985. An amount of Rs. 10,000/- was received by the defendants as advance. The sale was agreed to be complied within ten days. The agreement also provided that within the stipulated period building in the plaint schedule property should be demolished and the encumbrances on the property should be cleared off. The sale deed was got prepared by the plaintiff after purchasing necessary stamp paper on mutual consent. Plaintiffs and defendants sent to the Sub Registry Office to execute the sale deed but then the 3rd defendant came there and at his instigation, defendants 1 and 2 left the place without executing the sale deed. The plaintiffs were always ready and willing to perform their part of contract and the sale deed could not be completed as a result of breach of contract committed by the defendants. Hence the suit, for specific performance of agreement for sale.

(3.) In the written statement filed by the defendants 1 and 2, they admitted that the plaint schedule property belonged to them. They however denied the receipt of advance of Rs. 10,000/-. According to them, the plaintiff's uncle Velayudhan Nair and his brother in law, Achuthan Nair approached the defendants and requested them to sell the plaint schedule property to the plaintiffs for a consideration of Rs. 1,25,000/-. That was not acceded to by defendants 1 and 2. They told them that the property would not be sold for a consideration of less than Rs. 2 lakhs. They alleged that they improved the properties by planting rubber sapplings after availing loan from the Land Mortgage Bank, Trivandrum and Cooperative Land Mortgage Bank, Neyyattinkara. When they received notice from the Land Mortgage Bank, Neyyattinkara to pay the arrears due under the loan, they approached Velayudhan Nair and demanded Rs. 2,000/- by way of loan. He agreed to pay the amount provided they would execute a hypothecation deed in respect of the plaint schedule property. Achuthan Nair and the plaintiffs prepared a draft of the hypothecation deed and it was read over to defendants 1 and 2. However the original was prepared not as a hypothecation deed, but as an agreement. Defendants 1 and 2 happened to execute the same under the belief that the same in only a hypothecation deed. They were not aware of the contents of the document at the time of registration. They further averred that though the extent of the property was shown as 1 acre 25 cents, the actual extent on measurement is 1 acre 45 cents. The property was worth more than Rs. 2 lakhs. They denied that they had gone to the Sub Registry Office to execute the sale deed. The sale deed was got prepared by plaintiffs only to create evidence. They alleged that the 2nd plaintiff filed C.C. No. 1248 of 1985 before the Judicial Magistrate Court, Kattakkada complaining that they committed breach of agreement but they were discharged after finding that they were not guilty. According to them, they had no knowledge about the case filed by the 3rd defendant before the Munsiff's Court, Nedumangad as O.S. No. 355 of 1985. On these averments they contended that the suit is liable to be dismissed.