P SUBRAMANIAN UDAYAR Vs. ESWARI

JUDGEMENT

(1.) THIS Appeal Suit No.637 of 1987 and Transfer Appeal No.1086 of 1987 arise out of a common judgment and decree dated 19.3.1987 made in O.S.Nos.501 of 1983 and 18 of 1984 respectively. O.S.No.501 of 1983 was preferred by the appellant herein for specific performance of the agreement dated 27.2.1982 and O.S.No.18 of 1984 was preferred by the respondents herein for declaration and possession of the very same property for which specific performance was prayed for by the appellant in the other suit.

(2.) THE parties to the appeals are herein after referred to by their respective status as mentioned in the suit in O.S.No.501 of 1983. As such the appellant is the plaintiff and the respondents are defendants 1 to 5.

(3.) IN the written statement filed in O.S.No.503 of 1983 as well as, as per the plaint averments contained in O.S.No. 18 of 1984, the defendants contended that the first defendant is the mother of defendants 2 to 5, that the defendants became entitled to suit property by virtue of the registered will dated 2.4.1944 executed by the father of the first defendant, that as per the terms of the said will, the first defendant was entitled to life interest, while defendants 2 to 5 are the vested remainders, that the power of attorney agent is none other than the husband of the first defendant and father of defendants 2 to 5, that the defendants have been in possession and enjoyment of the suit property in their own right and were also carrying on personal cultivation, that the plaintiff was never the lessee of the suit lands, that the plaintiff was put in possession only pursuant to the suit sale agreement dated 27.2.1982, that even if the plaintiff was a tenant of the suit property, by virtue of the suit sale agreement, the plaintiff ceased to be the tenant of the suit property, that as per the agreement dated 27.2.1982, time was the essence of the contract, that as per the agreement, an advance of Rs.4000 was paid by the plaintiff on the same date namely 27.2.1982, that he agreed to pay a further sum of Rs.6,000 within fifteen days from the date of agreement and the balance of Rs. 4,000 to be paid within a period of seven months i.e. on or before 30.9.1982, that possession was also delivered to the plaintiff at the time of the agreement, that though the plaintiff paid Rs.4000 and Rs.6,000 as per the terms of agreement, the defendant failed to pay the balance sum of Rs.40,000 inspite of several reminders by the defendants, that the plaintiff did not have necessary funds to pay the balance of sale consideration, that even when the defendants issued notice dated 18.9.1982 expressing their readiness and willingness to execute the sale deed in accordance with the contract, and called upon the plaintiff to pay the balance of sale consideration, and get the sale deed executed, there was no response from the plaintiff, that to the subsequent notice dated 1.10.1982 also, there was no proper response from the plaintiff, that pursuant to the agreement dated 27.2.1982, the plaintiff also withdrew O.S.No.1422 of 1980 pending on the file of the Sub ordinate Judge, Coimbatore, that the agreement was attested by the advocates representing the respective parties, that even after the breach committed by the plaintiff in the month of December, 1982, the power agent of the defendant contacted the plaintiff, he expressed his inability to complete the sale and agreed to voluntarily surrender possession after harvesting the standing crops, and that even after harvesting the standing crops, the plaintiff did not surrender the possession of the land.