PARAMASIVAM Vs. MOHINI BAI

JUDGEMENT

(1.) THE defendant is the 1st appellant since deceased. THE suit arising out of which the present Second Appeal is filed for specific performance of the suit sale agreement. THE suit was decreed in favour of the plaintiff and the appeal filed by the defendant is dismissed by confirming the judgment decree of the trial court. Hence the Second Appeal by the defendant before this court. During the pendency of this appeal the sole appellant died and his LRs are impleaded as the defendants 2 to 7.

(2.) THE suit is filed for specific performance of Ex.A2 suit sale agreement dated 28.03.1984 purported to be executed between the plaintiff and the defendant in respect of the suit property for sale consideration of Rs.36,000/-. It is the case of the plaintiff that the plaintiff and the defendant entered into Ex.A1 sale agreement and the same was not subsequently fructified and fresh sale agreement was entered into between the parties on 28.03.1984 and Rs.5000/- was paid as advance on 21.08.1980 and further payment of Rs.5000/- is treated as advance under the 2nd sale agreement and the same was adjusted out of sale consideration of Rs.35,000/- agreed between the parties and the defendant agreed to receive the balance sale consideration of Rs.25,000/- and to execute the sale deed within two years and the balance sale consideration was received on 27.02.1985 and the plaintiff has been demanding the defendant to execute the sale deed and the plaintiff demand has been put off by the defendant. THE defendant has also not responded to the legal notice issued by the plaintiff and the same compelled the plaintiff to come forward with the present suit.

(3.) THE trial court on the basis of the evidence available arrived at a conclusion that suit Ex.A1 and Ex.A2 documents came to executed by the defendant as sale agreements with real intention to sell the property to the plaintiff after due negotiations regarding the sale transactions and the defendant failed to prove different nature of the transactions i.e, loan transaction and the plaintiff duly proved performance of her part of contract and the suit Ex.A2 agreement is binding and enforceable against the defendant. On appeal filed by the defendant the lower appellate court also after analysing the available evidence confirmed the findings of the trial court. Hence this second appeal by the defendant.