A L PARTHASARATHI MUDALIAR Vs. VENKATA KONDIAH CHETTIAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the learned IV assistant Judge of the City Civil Court in O. S. No. 901 of 1957, a suit filed for specific performance of an agreement to sell immoveable property. One Loganatha mudaliar purchased the plaint-schedule item 1 in his name and the plaint schedule item 2 in the name of his wife, Rathanammal. Loganatha Mudaliar died in 1955 and Rathanammal died in 1947, toganatha Mudaliar executed the will Ex. B-1, dated 1-3-1954 under which he gave the plaint schedule item 1 (two acres and 85 cents) in Kodur village in Rajampet taluk in Cuddappah Dt. to his son, Parthasarthi mudaliar, the first defendant in the suit, he gave item 2 of the plaint schedule (1 acre and 41 cents) land in Kodur village to his daughters who are not parties to this suit; he gave some other property to his daughter-in-law, Nagarathnammal, who had, at that time, lost her husband and who is the second defendant in the suit. It is alleged by the plaintiff, in the suit, that the first and the second defendants had executed the agreement marked as Ex. A-1 in the case to sell the plaint schedule items 1 and 2 for a consideration of Rs. 5750. Rs. one thousand was paid immediately and the balance was agreed to be paid within three months. There was also a provision that in case of default, the promisor would pay Rs. 5000 as penalty. On the ground that the defendants defaulted in executing the sale deeds as promised by them even though the plaintiff was willing to pay the balance of the sale price, the plaintiff filed the suit praying for the following reliefs: "that the defendants may be directed to receive Rs. 4750 being the balance of the sale price and effect a conveyance of both the items of the schedule described properties getting Sivakamiammal, nithyanandammal and Jeevarathnammal the sisters of the first defendant to join in the sale deed; or in the alternative the defendants may be directed to receive Rs. 3000 and effect a conveyance of item 1 of the schedule described properties and pay such compensation for the non-conveyance of item 2 of the schedule described properties as this hon'ble Court may fix, or in the alternative that the defendants may be decreed to pay Rs. 6000 to the plaintiff as compensation. " the first defendant pleaded that he was in Madras while the second defendant, his sister-in-law was at Vellore. The agreement of sale dated 14-2-1957 is in telugu. The first defendant can speak telugu and does not know to read and write the language. He wanted to raise a loan against the first Item of the properties which alone he got, as per the will of his father. He told his brother-in-law, Jagadesa mudaliar, retired sub-inspector of police to arrange for the loan. He was informed that the agreement was only for purpose of raising a loan and therefore he signed it. Subsequently, he came to know of the fraud played upon him. It was Jagadesa mudaliar who received the thousand rupees as advance and it was returned to the plaintiff. In the above circumstances, he was not bound to execute the sale deed. The second defendant said that she signed the agreement on seeing the first defendant's signature thereon, and she had no interest in both the items.

(2.) THE lower court found that the suit agreement was true, valid, and binding on the first defendant and that it was not executed in the circumstances alleged by the first defendant which amounted to fraud and mis-representation played upon him. It was signed by the first defendant with full knowledge of the contents. The lower court then held that only item 1 belonged to the first defendant, and he had no right to convey item 2 which belonged to his sisters. Then, the trial court applied Section 14 of the Specific Relief Act. It took the value of item 2 at Rs. 850 relying upon the valuation in the plaint for the purpose. Deducting this amount, it fixed the value of item 1 at Rs. 4900. From this one thousand rupees paid as advance was deducted, and the first defendant was directed by the decree to receive Rs. 3900, and convey item 1. The suit against the second defendant was dismissed without costs. From the above decision, the present appeal is filed by the first defendant.

(3.) IT was urged by the learned counsel for the appellant that the trial court should have found that the first defendant did not know to read or write Telugu and that he signed the document without knowing its nature and on the misrepresentation that it was a document to raise a loan. There was a contention, in the grounds of appeal, that the court at Madras had no jurisdiction to try the suit; but it was not pressed at the time of the hearing of the appeal. What was urged before me was the plea that the plaintiff's suit should have been dismissed De-cause the contract found proved was different from the contract pleaded by the plaintiff, and therefore, specific performance was not possible. This was not a case where section 14 of the Specific Relief Act should have been applied.