K RAMACHANDRAN NAIR Vs. LEELA JOSE

JUDGEMENT

(1.) These two appeals arise from the common judgment In O. S. Nos. 652 and 684 of 1989 on the file of the Principal Sub-Court, Thiruvananthapuram. O. S, No. 652/1989 was filed by the plaintiff for specific performance of the agreement of sale. The averments in the plaint was that the plaint schedule property originally belonged to late Sri M. Subbiah Pillai, father of the first defendant. Late Subbiah Pillai obtained title and possession over the property as per the decree and delivery list on O. S. No. 59/50 on the file of the Sub-Court, Thiruvananthapuram. Subbiah Pillai passed away on 9-2-1983 and as per the registered Will No. 18/1979 executed by him all his right, title and possession over the plaint schedule properties devolved on his three sons viz. S. Gopalakrishna Pillai, the first defendant and S. Bhagayathi Pillai. On 4-5-1988 they jointly executed an agreement of sale in favour of the plaintiff agreeing to sell the entire 20 cents for a total consideration of Rs. 2,50,000/-. The plaintiff paid advance

(2.) The first defendant remained ex parte. The 2nd defendant filed a written statement contending that the suit is filed with a view to harass and vex the defendants as a counter blast against the suit filed by her for partition of the defendant's 1/3 right over the 20 cents of property obtained by her as per sale deed No. 470/89 executed by the first defendant in her favour. The plaintiff was in occupation of the building situated in the entire 20 cents wherein the plaint schedule property is a part. All along he was trying to purchase the entire property from the first defendant and his brothers at a cheap rate taking advantage of his occupation. While so, the 2nd defendant's husband Jose Varghese, who was also a tenant under the first defendant and his brothers entered into an agreement for purchase of 1/3rd right of the first defendant. The first defendant executed agreement on 2-4-1987 in favour of the 2nd defendant agreeing to sell his 1/3 right and execute an agreement for sale in favour of the husband of the 2nd defendant or his nominee for a consideration of Rs. 20,000/- per cent within a period of one year from the date of agreement and received Rs. 20,001 / as part payment of sale consideration. The first defendant specifically agreed in the agreement that before execution of the sale deed, the entire 20 cents will be partitioned among the brothers and obtain separate possession and after disposal of the suit which was pending for recovery of possession in respect of a portion of 20 cents. After the agreement, the first defendant received A further sum of Rs. 10,800/- on various occasions as part payment of the sale consideration. The plaintiff was having his dishonest intention to purchase the entire property of 20 cents knowing fully well in respect of the agreement in favour of the 2nd defendant's husband, was won over and he managed to refrain from executing a partition deed among the brothers. The 2nd defendant's husband was all along ready and willing to perform his part of the agreement on performance of the promise made by the first defendant in accordance with the agreement of sale dated 21-4-1987. He demanded the first defendant to execute the sale deed as promised by him on receipt of the balance sale consideration due to him. Then the first defendant approached the 2nd defendant's husband on 19-4-1988 for extension of time which he refused. Even though the 2nd defendant's husband issued registered notice to the first defendant demanding execution of the sale deed in accordance with the agreement, he did not do so. 2nd defendant's husband then came to know that the non performance of the agreement by the first defendant was due to the instigation of the plaintiff and also to avoid the agreement. The plaintiff was making his earnest endeavour to obtain sale deed in respect of the plaint schedule property in his favour. Hence the 2nd defendant's husband as plaintiff filed O. S. No. 282/88 against the first defendant for specific performance and restraining the first defendant from executing any sale deed in respect of the plaint schedule property to strangers. The first defendant after realising that there was no other way except to execute the sale deed entered into a compromise in O. S. No. 282/88 and a compromise petition was filed. Sale deed was executed in respect of the 1/3rd right of the first defendant in favour of the 2nd defendant. The plaintiff is not entitled to any relief against the defendants. Agreement relied upon by the plaintiff is fabricated and brought into existence in collusion with the first respondent to avoid the agreement in favour of Jose Joseph. The agreement will not confer any right in favour of the plaintiff or make any obligation to the first respondent or his vendee. If the plaintiff had created any document, the same is not binding on the 2nd defendant. The first defendant never agreed to sell the plaint schedule property to the plaintiff at any point of time and the plaintiff was aware of the existence of the agreement dated 21-4-1987 in favour of the 2nd defendant's husband.

(3.) The 2nd defendant as plaintiff filed O. S. No. 684/1989 for partition and separate possession of 1/3rd right over the plaint schedule property which is pending before the First Additional Sub-Court, Thiruvananthapuram. The allegation that the plaintiff came to know the execution of the sale deed by the first defendant in favour of the 2nd defendant from one Gangadharan is false. The plaintiff was fully aware of the agreement in favour of Jose Varghese and the subsequent sale deed in favour of the 2nd defendant (plaintiff in O.S. No. 684/1989). The 2nd defendant is a bona fide purchaser for value without notice of any agreement alleged to have been entered into between the first defendant and the plaintiff. The plaintiff is not entitled to get any remedy against the 2nd defendant. The sale deed in favour of the 2nd defendant is valid and binding on all including the plaintiff. The claim that the period of agreement between the first defendant and the husband of the 2nd defendant had expired is not correct. The obligation of the first defendant as per the agreement was subsisting and that the plaintiff was fully aware of the agreement and subsequent sale. Plaintiff is not entitled to get any relief. On the basis of the pleadings, the Court below framed five issues.