MADHAVAN Vs. THANKAM

JUDGEMENT

(1.) The appellant/plaintiff and the respondent/defendant entered into Ext. A1 agreement dated 23/02/1990 for sale of the plaint schedule property having an extent of 53 cents of 'nilam'. The price fixed was Rs.315/- per cent of land. The plaintiff - buyer paid an advance of Rs.10,000/- on the date of agreement. The period fixed in the agreement for completion of the transaction was 11/02/1991. According to the plaintiff, possession was given to him on the date of agreement. The plaintiff alleged that on 11/02/1991, a sum of Rs.6,601/- was paid to the defendant and the time for completion of the transaction was extended till 30th Makaram 1168 (M.E.) which corresponds to 12/12/1993. Ext. A2 notice was issued by the plaintiff on 03/02/1993 demanding execution of the assignment deed to which Ext. A3 reply was sent by the defendant stating that she was prepared to execute the assignment deed, provided, the plaintiff paid the loan amounts due to the banks charged on the property. Evidently, the plaintiff was not willing for the same. The suit was filed for specific performance.

(2.) The defendant contended in the written statement that the plaint schedule property is the only agricultural land belonging to her and that herself and five other family members are depending for their livelihood on the income derived from this property. She denied the contention that Rs.6,601/- was received on 11/02/1991 and an endorsement was made on Ext. A1 to that effect. Handing over of possession of the property was also denied. It was contended that the value of the property at the time of Ext. A1 agreement was Rs.1,000/- per cent. According to the defendant, she borrowed a sum of Rs.10,000/- from the plaintiff for the purpose of the wedding of her daughter. The plaintiff insisted for writing an agreement and he also insisted that the loans due to the banks should not be mentioned in the agreement. The agreement was prepared by the plaintiff. The defendant had not read and understood the contents of the agreement. She believed the plaintiff and signed the agreement. The plaintiff failed to discharge the debts due to the banks. The extent of the property is not 53 cents but much more than that. Since the plaintiff failed to discharge the debts due to the banks, revenue recovery proceedings were initiated and the defendant was compelled to pay the instalments payable to the banks. The plaintiff is a money lender and he owns large extent of properties. He does not require the plaint schedule property. The defendant also expressed her readiness to repay Rs.10,000/- with interest. It was contended that the plaintiff is not entitled to the discretionary relief of specific performance.

(3.) The Trial Court decreed the suit. It was held that Ext. A1 agreement was executed by the defendant knowing well the contents of the same. The endorsement on 11/02/1991 was made by the defendant and she put her signature. Rs.6,601/- was received by the defendant. The Trial Court did not accept the case of the defendant that there was an oral agreement on the date of Ext. A1 itself, on the ground that such an oral agreement would be hit by S.92 of the Evidence Act since the terms of the oral agreement are inconsistent with the terms of Ext. A1. It was held by the Trial Court that the fact that the plaint schedule property is the only agricultural property belonging to the defendant and that there was price escalation due to lapse of time are not relevant considerations. The defendant is a nursing assistant employed in a government hospital. The Trial Court noticed that the evidence of PW 1 that he got possession of the property was not challenged in cross examination and that the defendant while examined as DW 1 did not state that possession was not handed over to the plaintiff. It was held that the plaintiff is in possession of the plaint schedule property. On the ground that the defendant has raised a false contention in respect of the receipt of Rs.6,601/- and the endorsement made on Ext. A1 on 11/02/1991, the Trial Court concluded that she is not entitled to invoke the discretion under the Specific Relief Act.