PACHAN SIVADASAN Vs. INDIRA

JUDGEMENT

(1.) The unsuccessful plaintiff in a suit for specific performance of an agreement for sale of immovable property is the appellant. He entered into an agreement with the first defendant - first respondent on 2-7-1981 by which she agreed to sell 65 cents of land for a total consideration of Rs. 20,000/- of which an amount of Rs. 10,000/- was paid as advance. The balance was agreed to be paid and the transaction completed on or before the 28-2-82. Though plaintiff informed the first defendant about his readiness and willingness, first defendant was not prepared to perform her part of the contract. On enquiry plaintiff came to understand that out of the property agreed to be sold 15 cents on the southern side had already been sold to another person and the remaining area of 50 cents alone was available. There was also encumbrance charged over the property. Plaintiff therefore wanted a sale deed to be executed in respect of 50 cents of land on a proportionate consideration of Rs. 15,385/-. He expressed willingness to deposit the balance amount of Rs. 5385/-. In the alternative he sought a decree for return of the amount advanced with interest at 15% per annum. Second defendant is the Land Mortgage Bank, Nedumangad to whom the property is alleged to have been mortgaged by first defendant.

(2.) The suit was resisted by the first defendant who admitted execution of a document on 2-7-1981 but contended that she was misled by one Kuttan Balakrishnan who was living with her as husband though he is not her legally wedded husband. She was taken to the Sub Registry Office on representation that he was executing a security bond. She came to know of the real nature of the document only on receipt of the notice issued by plaintiff. She denied having received any consideration. She admitted that an area of 15 cents had been sold even prior to the date of this document. According to her the consideration shown is inadequate and the property would have fetched atleast Rs. 1,00,000/-.

(3.) Plaintiff was examined as PW-1 and one of the attestors to Exhibit A1 agreement was also examined on his side. First defendant got herself examined as DW-1. Kuttan Balakrishnan was examined as DW-2. DW-3 is the Commissioner who valued the property. On a consideration of the documents and evidence the court below accepted the contention of the first defendant and dismissed the suit holding that plaintiff was misled by Kuttan Balakrishnan to execute a document of this nature and that she had not received any consideration thereunder. Hence the appeal by the plaintiff.