PRASANNA Vs. SREEDHARAN

JUDGEMENT

(1.) Both the appeals are filed against the judgment rendered in O.S.No.406 of 1982 on the file of the Court of the Sub Judge, Tellicherry. The first defendant in the suit is the appellant in A.S.No. 147 of 1987 and the plaintiffs in the suit are the appellants in A.S.No.303 of 1987, This common judgment is being passed in both the appeals.

(2.) The suit was filed for specific performance of contract and in the alternative for recovery of a sum of Rs.2,10,391/- paid in advance at the time of entering into an agreement of sale of the suit property and for damages. Plaint A and B Schedule properties of the plaint, consisting of a Cinema Theatre known as Prabhat Cinema at Cannanore with all appurtenances, equipments, furniture and other buildings and movables, belong to the defendants. These properties originally belonged to the husband of the first defendant and his brothers. There was a suit for partition of this property. Finally a decree was passed on compromise. Execution Petitions, bearing No.19 and 27 of 1981, were filed by the brothers of the first defendant's husband for their share. Since the defendants were not able to pay the decree amount, the plaint schedule property was sold for a sum of Rs.5,44,000/- on 24-6-1982 by the Court. In the meantime, the first defendant's husband died. The defendants, however, wanted to save the property for themselves. Thereafter, the litigation was being conducted by the brother of the first defendant. The first defendant and her brother Premarajan approached the first plaintiff and offered to sell the plaint schedule properties. Although the first plaintiff was initially reluctant, he ultimately agreed to purchase the same at a cost of Rs.7,44,000/- He paid a sum of Rs.2,10,391/- as advance. The first defendant for herself and on behalf of her minor son (second defendant) executed and registered Ext. A1 agreement dated 21-7-1982, wherein it was stipulated that the plaint schedule properties belonging to both of them in half shares would be transferred for a sum of Rs.7,44,000/- in favour of the plaintiffs after obtaining necessary permission from the competent court for sale of the share of the minor (2nd defendant). After the deposit of the amount in court, the court sale was set aside. But the defendants avoided to execute the sale deed, although the plaintiffs were ready and willing to pay the balance amount. The plaintiffs sent a notice on 4-10-1982 calling upon the defendants to execute the sale deed. But, they failed to execute the sale deed as per the agreement Ext.A1.

(3.) The defendants, in their written statement have contended that the first defendant was persuaded by her brother to sign on the document (Ext. A1) without the contents thereof being explained. She never intended to execute any such agreement. After the death of the husband of the first defendant there was no one to help her and her minor child except her brother. Her brother approached the first plaintiff and intimated the first defendant that he succeeded in getting the required amount and the same was paid in court by him and got me auction sale set aside. She was made to believe that she was signing a document of security for the money advanced by the first plaintiff. The first defendant came to know about Ext.A1 agreement for the first time on receipt of a letter dated 2-9-1982 (Ext.A5) sent by the plaintiffs demanding for - execution of the sale deed on receipt of balance consideration. The property in question is worth more than rupees 40 lakhs. The property could not have been agreed to be sold for an inadequate consideration of Rs.7,44,000/-. Moreover, it is contended that the share belonging to the second defendant, who was then a minor, could not have been transferred by her. The second defendant is not bound by the contract.