NAVANEETHAKRISHNAN Vs. DHARADEVI

JUDGEMENT

(1.) Aggrieved over the concurrent findings of the Courts below in a Suit for specific performance, the defendants have preferred the above Second Appeal.

(2.) The plaintiffs filed a Suit for specific performance on the basis of an agreement dtd. 1/12/2003 executed by the appellants herein to sell the Suit property for a total sale consideration of Rs.1,50,000.00. According to them, on 28/11/2003, the first plaintiff's husband and her brother have negotiated with the respondents. Pursuant to the oral agreement dtd. 28/11/2003, the first respondent / first plaintiff's husband paid a sum of Rs.75,000.00 under Cheque No.140208 to the first defendant and Rs.25,000.00 under Cheque No.140209 to the second defendant, Rs.25,000.00 under Cheque No.140210 to the third defendant and Rs.25,000.00 to the fourth defendant under Cheque No.140211 totalling a sum of Rs.1,50,000.00. The defendants have agreed to execute the power of attorney in favour of Late Rajappa as they were residing in Chennai. On the same date of sale agreement, handed over the original title deeds and encumbrance certificate. Since the defendants have failed to execute the sale deed as promised, Late Rajappa issued a legal notice on 29/1/2004 fixing the last date as 13/2/2004 for executing the sale deed. On 10/2/2004, the defendants replied the legal notice with untenable allegations that the amount mentioned in the agreement is only an advance and not the sale consideration. Thereafter, Rajappa died due to certain ailments on 2/3/2005. As legal heirs, the plaintiffs have issued a legal notice dtd. 21/11/2005, fixing 30/11/2005 as date for execution and registration of sale deed. But the defendants have not replied the legal notice. Hence, they filed a Suit for specific performance or in the alternative to refund the sale consideration of Rs.1,50,000.00along with interest @ 12% per annum.

(3.) Resisting the averments, the defendants / appellants contended that the agreement was created by two brokers, namely, Durai Raj and Rajappa with an ulterior motive to grab the property from them. Since the agreement is fraudulent, the Suit shall be dismissed in limine. The property originally belonged to their mother and after her death, it was inherited by five of her legal heirs. The eldest son Gopalakrishnan is living separately due to misunderstanding in the family and he is entitled to 1/5th share. The said Durai Raj, broker, had approached the appellants/defendants on the pretext that their elder brother had consented for sale of the property and therefore, if a power of attorney is given to him, he will facilitate the sale of the property for a good price and pay equal share. He paid a sum of Rs.75,000.00 to the first defendant and Rs.25,000.00 each to defendants 2 to 4 as advance. Believing his words, they have executed a general power of attorney in favour of Durai Raj. Later, on knowing that the said Durai Raj and Rajappa were trying to exploit the old age of the defendants and attempted to cheat the defendants 1 to 4 by selling the property for a huge amount, they have immediately cancelled the power of attorney executed in favour of Durai Raj and communicated the same to him. The original title deeds were with their elder brother Gopalakrishnan. When he refused to sell the property, the said Durai Raj and Rajappa have threatened to kill him and coerced him to sell his 1/5th share in favour of one Vasunthara Devi and forcibly obtained his signature. The said Gopalakrishnan was heart broken and suffered serious illness and died due to the above incident. He had written a letter before his death stating that Durai Raj, Rajappa and Kaliaperumal are responsible for his death. Thereafter, the said Durai Raj and Rajappa were attempting to grab the property from the defendants 1 to 4. They filed a Suit in O.S.No.17 of 2005 on the file of District Munsif Court, Mannargudi. During the pendency of the suit, Rajappa died. Thereafter, the plaintiffs have filed the above suit. The property worth more than Rs.12,00,000.00 during 2003 itself. There was no necessity for the defendants to sell it for a meagre sum of Rs.1,50,000.00 and they have not agreed to sell the property or executed the sale agreement for selling the property for a sale consideration of Rs.1,50,000.00 and on this ground, they sought dismissal of the suit.