DEVAKI AMMA Vs. CHAMPAKALINGOM

JUDGEMENT

(1.) THE second defendant deceased,who was the father of the first defendant,was the owner of the property in suit,having purchased it in the year 1090 by Ex.P -3 as rectified by Ex.P -9.In the year 1103,he made a gift of the property to the first defendant by Ex.P -2,reserving to himself the right to enjoy the property and stipulating that the first defendant shall not alienate it.However,on the 27th Chingom,1125,by Ex.P -1,an unregistered docu­ment,the first defendant agreed to sell the property in conjunction with the second defendant to the first plaintiff for Rs.2,000 and received Rs.100 in advance.He also gave the plaintiff,Exx.P -2 to P -10,the prior documents of title.On the 11th Thulam,1125,the first defendant gave lawyer's notice Ex.P -11 to the plaintiff repudiating Ex.P -1 as inoperative and ineffectual and demanding the return of the documents of title.On the 11th Kumbhom,1125,defendants 1 and 2 sold the property to the 3rd defendant by Ex.D -1.On these averments,the plaintiff commenced this suit on the 20th Kanni,1126,for specific performance of Ex.P -1 on the ground,that the 3rd defen­dant is not a transferee for value without notice of Ex.P -1 and in the alternative for compensation for breach of Ex.P.1.The first plaintiff having died pending the suit,plaintiffs 2 to 4 were impleaded as his legal representatives and a decree in favour of the 4th plaintiff was prayed for,on the strength of a deed of partition between them.The second defendant also died during the pendency of the suit.

(2.) THE first defendant contended,that the 3rd defendant represented to him that Ex.P -1 was void,and therefore he executed Ex.D -1 nominally in his favour.The second defendant denied the genuineness of Ex.P -1.The 3rd defendant,the contesting respondent,pleaded that Ex.P -1 is not genuine,that he had no knowledge of Ex.P -1,and that in any event,the plaintiff had abandoned his rights under it.The Subordinate Judge found Ex P -1 to be genuine,but held that the 3rd defendant had no notice of it and therefore declined to decree specific performance;instead he decreed refund of Rs.100 to the plaintiff.The 4th plaintiff has preferred this appeal.

(3.) I find no difficulty in agreeing with the Subordinate Judge that Ex.P -1 is genuine.P.W.1 who wrote and P.W.2 who attested Ex.P -1 have proved its genuineness.The first defendant admitted its execution in the written statement and the second defendant pleaded inter alia that the first defendant executed it collusively.The 3rd defendant,D.W.1 denied Ex.P -1 and said that it was invalid.In Ex.P -11 notice the first defendant admitted Ex.P -1,but repudiated it as no longer subsisting,for reasons which cannot stand.At that time,it is not pos­sible to imagine that the first defendant was colluding with the plaintiff;rather,the inference is that he was trying to back out of it,probably to conclude the bargain with the 3rd defendant.P.W.3,the husband of the 4th plaintiff deposed,that the plaintiff replied to Ex.P -11 and further gave notice for specific performance;there is no docu­mentary evidence to support this.However on the materials,I agree with the Subordinate Judge in holding that Ex.P -1 is genuine.