MARIMUTHU AMMAL Vs. K S ARUNACHALA IYER

JUDGEMENT

(1.) THE plaintiff is the appellant. THE suit is filed for specific performance of the agreement dated 29.08.1979. THE plaint averments in brief are as follows:

(2.) THE first respondent is the owner of the suit property. On 29.08.1979, he agreed to sell the property to the appellant for a consideration of Rs. 40,000/-. Thousand rupees was given as advance. THE first respondent agreed that he would fulfill the contract, after vacating his brother, the second respondent who had been permitted to occupy a portion. To this effect, a receipt was issued which is marked as Ex. A5. THE third respondent is the tenant. THE appellant was always ready from the date of agreement to perform her part of the agreement. On 05.12.1979, the first respondent issued a notice to the second respondent asking him to vacate the premises. This is Ex. A6. Second respondent has no right in respect of the suit property. THE appellant issued a lawyer's notice which is marked as Ex. A31 dated 29.05.1982, belatedly reply was given by the first respondent under Ex. A32 dated 02.08.1982. THE reason given in the reply for the agreement is totally false. THE first respondent now wants to set up a case that the agreement was entered into only to use it as lever for evicting the second respondent from the suit property. This is an after thought and cannot be sustained. THE suit must be decreed. THE written statement of the first respondent alone is relevant for the purpose of the appeal. In this, the first respondent contended that the second respondent was his brother who was permitted to occupy the premises and while the second respondent ought to have been grateful to the first respondent, he started creating trouble. Since the effort of the first respondent to throw out the second respondent proved fruitless, he sought the assistance of the appellant's husband who was a Vakil's clerk and also the assistance of the appellant's son, who was also a vakil's clerk. THE appellant's husband advised him that a notice should be issued to the second respondent retaining a carbon copy stating that he intended to sell the property. THE appellant's husband also kept the carbon copy of the notice. THE suit property is the self acquired property of the first respondent. Inspite of this notice, the second respondent refused to vacate the premises and subsequently a plan was mooted by the appellant's husband and her son that an agreement would be brought about only for the purpose of using it as lever to remove the second respondent. Neither was any advance paid nor received. THE very fact that out of the alleged consideration of Rs. 40,000/-, only thousand rupees was said to have been paid under Ex. A5, shows that it is not a genuine sale agreement. THE suit itself has been filed only because of the rise in prices and with the intention to snatch away the property at a very low price. Ex. A5 which is stated to be the agreement to be specifically enforced is written on a plain piece of paper and it is not believable that a vakil's clerk would have consented to have an agreement on a plain paper, especially when it related to sale of immovable property. THE documents produced along with the plaint have all been obtained only because the appellant's husband and son have been vakil's clerks and they have taken advantage of the fact that certain copies were in the office of the lawyer, who had issued a notice on behalf of the appellant. THE first respondent never intended to sell the property since it was purchased for the benefit of his family. THE suit should be dismissed.