K. VENKATASUBRAMANIAM Vs. S. ARTHANARISWAMI CHETTIAR AND ORS.

JUDGEMENT

(1.) These are two appeals which arise out of a judgment of the learned Subordinate Judge of Salem in Original Suit No. 350 of 1973. In Appeal Suit No. 142 of 1976 the third Defendant in the suit is the Appellant while Appeal Suit No. 798 of 1979 has been filed by the first Defendant. The suit was filed by one Arthanariswami Chettiai for specific performance and damages against the Defendants of whom the first Defendant is the father. Defendants, 2and 3 the sons and the fourth Defendant is the son of the second Defendant. The suit concerns Door No. 384, Trichy MainRoad, Gugai, Salem. It is not in dispute that this property originally belonged to a joint family consisting of Defendants 1 to 4. There was an agreement between Defendants 1 and 2 on the one hand and the Plaintiff on the other, by which Defendants 1 and 2 agreed to convey this property for a sum of Rs. 1,20,000 in favour of the Plaintiff. This agreement was entered into on 1st May, 1972, under which a sum of Rs. 25,501 was paid as advance and the balance of Rs. 94,499 was payable within one month. The Plaintiff alleged that several payments were however made to the first Defendant from time to time in order to discharge certain antecedent debts for which alone this property was sold, leaving a balance of Rs. 3,385.17. There were extensions, of the time for conveyance from time to time and ultimately as the Defendants did not execute the sale deed, the Plaintiff came forward with the present suit for specific performance.

(2.) The first Defendant in his written statement admitted the execution of the suit agreement of sale on 1st May, 1972, but according to him, it was not on behalf of the third Defendant, who was a major even before the date of the said agreement. He pointed out that the Plaintiff was the son -in -law of his brother and that, he had full knowledge of the affairs in the family. As the Plaintiff asked the first Defendant to induce the third Defendant to join the execution of the sale deed, the agreement recited about the third Defendant also joining in the execution of the sale deed. It was stated that the third Defendant's share was not intended to conveyed and that, if it was to be conveyed, Rs. 1,75,000 would be the consideration for the same.

(3.) In the written statement filed by the second Defendant it was stated that there was division between him and his father. even in the year 1965, that the whole agreement was brought about by misrepresentation and fraud and that the payment, as alleged in paragraph 9 of the plaint had not been made. The further contention was that there was no need for the alienation and that the earlier debts had not been incurred for any legal necessity or binding purpose.