KRISHNAN CHELLAPPAN Vs. KUTTY KUNJAMMA

JUDGEMENT

(1.) This Second Appeal came before us on an order of reference passed by Bhaskaran Nambiyar, J. under S.3 of the High Court Act.

(2.) The second appeal arises out of a suit O. S. No.210 of 1977 on the file of the Munsiff's Court. Karunagappally filed by the appellant, for specific performance of a contract with alternative prayer for return of money advanced by the plaintiff. The 1st defendant who is the 1st respondent herein is the mother and defendants 2 and 3 are her major children. The plaint-A schedule property belonged to defendants 2 and 3 and the other minor children of the 1st defendant on the strength of a registered document No.2595 of 1974 executed by the 1st defendant. Plaint B-schedule property and the building and well existing therein belonged to the defendants and the abovesaid minors as having obtained under sale deed No. 861 of 1964. The father and mother of the 1st defendant had life interest over B-schedule property. The total extent of both the items is 20 cents. The defendants entered into an agreement with the plaintiff for sale of 20 cents of the plaint property including the building and well for a consideration of Rs. 7000/-, on 30-4-1976 as per Ext. Al document. Part of the total consideration of Rs. 7000/-, Rs. 2000/- formed consideration of the building and well. The defendants received an amount of Rs. 1000/-towards part of the sale consideration. It was also agreed that the properties will be measured and the sale deed executed within one year and the life interest-holders would also join the execution of the document. It was further agreed that the properties purchased in the name of minors would be offered as security in the sale deed. Subsequently on 14-3-1977 the defendants received a further advance of Rs. 500/- from the plaintiff, but thereafter they did not do anything to perform their part of the contract inspite of repeated requests made by the plaintiff. Thereupon the plaintiff issued a registered notice requiring the defendants to go over to the Sub Registry Office on 27-4-1977 and to execute the document after receiving the balance of sale consideration. That was also not heeded to by the defendants. The defendants had only 1/3 right in A-schedule property and 3/7 share in the B-schedule property. The plaintiff was willing to purchase the shares of the defendants in the property even excluding the building and the well, and the defendants were informed that if the defendants were prepared to purchase other property in the name of the minors and get the consent of the life-interest-holders, the plaintiff was willing to take the sale deed for the entire plaint schedule properties. On these allegations the plaintiff filed the suit for directing the defendants to execute the sale deed for their 1/3 and 3/7 shares respectively in the plaint A and B schedule properties, receiving the balance of sale consideration and to allow the plaintiff to take separate possession of the respective shares after effecting a division by metes and bounds. The plaintiff alternatively prayed for a decree allowing the plaintiff to recover a sum of Rs. 1500/- paid as advance towards the sale consideration from the defendants and charged on their right in the plaint schedule properties.

(3.) In their written statement the defendants contended that the agreement dated 30-4-1976 was not binding on the plaint schedule properties and the executants thereof had no right to enter into such a contract, and the plaintiff was not entitled to get any relief on the basis of the agreement which is invalid from its very inception. The 1st defendant had no authority to represent the interest of the minors, since she was not the legal guardian of the minors. Similarly it was alleged, that the parents of the 1st defendant who had life interest over B-schedule property were not parties to the agreement. It was admitted that Rs. 1000/- was received as advance by the defendants but the defendants contended that the contract cannot be enforced against the four minors of the 1st defendant and the parents of the 1st defendant who had life interest in B-schedule property, since they were not parties to the contract. The allegation in the plaint that a further sum of Rs. 500/- was advanced was denied. It was also averred that the plaintiff had not done anything for the performance of the contract and the notice alleged to have been issued had not been received by the defendants.