R DHANAM Vs. SUBADHRA

JUDGEMENT

(1.) The plaintiff in the suit is the appellant.

(2.) The case in brief is as follows : The plaintiff filed a suit for specific performance of the Agreement of sale. The suit property is a residentialbuilding consisting of three portions. The first portion of the building belonged to her husband, the middle portion which is the suit portion of the house was owned by Sundari Ammal and the third portion belongs to the plaintiff absolutely by virtue of the sale deed in her favour dated 29-11-1978. The entire building is in the possession of the plaintiff and she is using the same as her residential house. The plaintiffs husband has leased out the front portion to a tenant and the tenant is occupying the same and in the middle portion, the plaintiff is residing with her family members. The middle portion required intensive repairs and she wanted the plaintiff to do the repairs and occupy the building as tenant and accordingly, the plaintiff paid a sum of Rs. 300/- as advance rent on 23-11-1996 and spent for the repairs of the building. The total amount spent for the repair work of the building was Rs. 1669.10 and she also maintained accounts. Sundari Ammal had also signed the accounts. She had agreed to pay the repair charges subsequently. Sundari Ammal wanted to sell her portion of the building and the plaintiff agreed to purchase the same. She agreed to sell the middle portion to the plaintiff and received a further sum of Rs. 500/- on 5-10-1980 and passed on a receipt for the same. The plaintiff is not acquainted with the forms and legal formalities of a sale agreement. The sale consideration for the building was fixed at Rs. 2,200/- The entire electricity connection for the building and the water supply connection were made by the plaintiff with the funds of her husband. The plaintiff being an illiterate lady and a house wife never suspected the bona fides at that time. Now, it transpired that as a scheming lady, the defendant had created a sale deed in favour of the 2nd defendant only very re- cently purporting to sell the suit portion of the building. Sundari Ammal is not entitd to sell the building to the 2nd defendant as, she had earlier accepted and agreed to sell the property to the plaintiff and received part of sale consideration. The plaintiff has spent about Rs. 1669.10 and paid Rs. 500/ as advance and the total amount comes to Rs. 2,169.10. The 2nd defendant cannot acquire any interest in the suit property. The alleged sale deed is sham and nominal document. The vendor Sundari Ammal subsequently died and the 1st defendant is her only daughter and legal heir. The plaintiff is always ready and willing to perform her part of the contract. Hence, the suit. The 2nd defendant resisted the suit and denied the various averments in the plaint. The plaintiff is the owner of the last 1/3rd portion of the house and 1/3rd portion of the backyard. The undivided l/3rd portion of the house and l/3rd portion of the backyard in the extreme back side were owned by Sundari Ammal. The middle 1 /3rd portion of the house was originally owned by the 1st defendants uncle Thiyagaran and he. sold the same to the 1st defendants mother Sundari Ammal under a registered sale deed dated 16-7-1966. The alleged expenses for alleged repairs are not true. Sundari Ammal did not ask the plaintiff to do the repairs. The plaintiff constructed a latrine in the backyard without the consent and knowledge of the landlord. The plaintiff would not have spent more than Rs. 500/- on that account. Sundari Ammal did not sign any account nor she agreed to pay for the alleged repairs. The plaintiff was in huge arrears of rent and she also promised to vacate and hand over possession within three months provided Sundari Ammal paid Rs 1,000/- towards the amount spent for repairs. Under the circumstances, Sundari Ammal sold the property to the 2nd defendant under a registered sale deed dated 9-11-1981 for valid consideration. The 2nd defendant is a bona fide purchaser for value and without notice of the alleged claim of the plaintiff. The plaintiff issued a notice and it was suitably replied. There was also mediation subsequently and she filed the present suit making a false claim. The terms of the compromise was reduced into writing on 19-8-1982 signed by.the plaintiff and the 2nd defendant in the presence of the me- diators, who attested the document. It was agreed that the 2nd defendant should pay a sum of Rs. l.OOO/- towards the repair charges and electric fittings incurred by the plaintiff, but agreed to vacate within 3 months from 19-8-1982 after receiving the amount and undertook not to proceed with the litigation in the Court. The plaintiff is bound to withdraw the suit after receiving a sum of Rs. 1,000/- as per the terms of the compromise. The water .supply connection do not belong to the 2nd defendant. The plaintiff is not entitled to get specific performance in view of S. 53-A of Transfer of Property Act. She is liable to pay damages for use and occupation at Rs. 40/- per month till date of delivery of possession. Hence, the suit filed by the plaintiff has to be dismissed. The trial Court framed 5 Issues and on behalf of the plaintiff, P. Ws. 1 to 3 were examined and Exs. A-1 to A-9 were marked and on the side of the defendants, D. Ws. 1 to 4 were examined and Exs. B-1 to B-3 were marked. The trial Court decreed the suit and aggrieved against this, the defendants preferred A. S. No. 30 of 1988 on the file of Sub-Court, Kumbakonam and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved against this, the plaintiff has come forward with the present second appeal. During the pendency of the appeal, the plaintiff died and the 2nd appellant was impleaded as her legal heir.

(3.) At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration : Whether the plaintiff was entitled to specific performance of the agreement of sale (Ex. A-2) in her favour?