K S KRISHAN Vs. KRISHNAN

JUDGEMENT

(1.) The main aspect to be considered in this appeal is whether an agreement to sell immovable property by three co-owners can be specifically enforced against one of them in respect of his share.

(2.) Plaintiff in O.S. 213/85 before Sub-Court, Palghat is the appellant. The suit was filed by him against the defendant seeking specific performance of an agreement executed by defendant and his two brothers on 12-8-1982 by which they agreed to sell the plaint schedule property for a total consideration of Rs. 1,45,200/- of which an amount of Rs. 20,000/- was received on the date of the agreement. Major portion of the property was also put in possession of the plaintiff, and the executants undertook to evict the tenant in occupation of the buildings. The sale was agreed to be completed by 30th of August, 1983. A further sum of Rs. 1,05,000/- was also paid. In the meanwhile one Achuth Bhaskar filed a suit against defendant and his brothers as O.S.190/83 seeking to restrain them from assigning the property to plaintiff. Plaintiff got himself impleaded in that suit which was dismissed on 26-7-1985. Plaintiff was not able to get the agreement enforced in view of the temporary injunction granted by that Court. Plaintiff wanted defendant and his brother Govindan to execute the sale deed after receiving the balance consideration. In the meantime Govindan had obtained a release of 1/3rd share of his brother Pulendran. Govindan executed an assignment in respect of his 2/3rd share on 26-8-1986. Defendant was not prepared to perform his part of the contract. Hence the suit seeking specific performance of the agreement by defendant after receiving Rs. 6,667/- his share of the balance consideration.

(3.) The suit was resisted by the defendant on various grounds. He denied the execution of the agreement and receipt of consideration. The receipt of the further amount of Rupees 1,05,000/- was also denied by him. He contended that he had subscribed his signature in some of the papers taken to him by his brother Govindan and those papers might have been utilised for preparing the agreement and the receipt. He did not agree to sell his share of the property. He therefore contended that the agreement is not enforceable against him.