RAJAMONY Vs. SARADAMMA

JUDGEMENT

(1.) The suit for specific performance, with an alternate prayer for return of advance sale consideration, was dismissed by the trial court. The plaintiff is in appeal.

(2.) Ext.A1 agreement dtd. 31/5/2010 was entered into between the plaintiffs and defendants 1 to 3 for the sale of the plaint schedule property to the plaintiff. The total sale consideration fixed was Rs.135.00lakhs. An amount of Rs.40.00 lakhs was paid on the date of Ext.A1, towards advance sale consideration. The period fixed for performance was four months. The plaint schedule property belonged jointly to defendants 1 to 4; the first defendant is the mother, and she is entitled to 70%, and defendants 2 to 4, who are her sons, are entitled to 10% shares each. The 4th defendant was not a party to Ext.A1 agreement. It was the term of the agreement that defendants 1 to 3 would cause a partition deed to be executed along with the 4th defendant, whereunder, the plaint schedule property would be got allotted exclusively to defendants 1 to 3. According to the plaintiff, defendants 1 to 3 failed to honour the agreement. Though defendants 1 to 4 entered into a partition deed, in contravention of the terms of Ext.A1, a portion of the property was allotted to the 4th defendant. He conveyed a portion of such property to defendants 5 and 6. The first defendant-mother conveyed her share under the partition to her another son, the 7th defendant.

(3.) On 11/11/2010, defendants 2 and 3 conveyed a portion of the property to the plaintiff. On coming to know about the attempt of the defendants to alienate the remaining property in breach of the agreement, the plaintiff filed a suit as OS 677/2010 for a prohibitory injunction not to alienate the property to strangers. Subsequently, after the expiry of the period for performance fixed under Ext.A1, the present suit was filed seeking specific performance, with an alternate prayer for return of the advance sale consideration. It was alleged that, after the conveyances in his favour by defendants 2 and 3, the balance advance consideration with defendants 1 to 3 is Rs.17.00 lakhs. The suit OS 677/2010 was withdrawn, with leave of the Court, to prosecute the suit for specific performance.