NAGAMMAL Vs. AYYAVU THEVER

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. The question that arise for consideration in the second appeal is whether the plaintiff-purchasers are entitled to a refund of the advance paid in respect of an agreement of sale which fell through due to the defect in title of the defendant-vendors and in case the plaintiffs are entitled to a refund whether a charge could be created on the property covered by the agreement of sale.

(2.) THE facts of the case are as follows: The first defendant through her husband kesava Naidu, and her brother one Nagasami Naidu negotiated for the sale of the suit property to the plaintiffs and on 26-5-1944 the plaintiff and the first defendant entered in to an agreement of sale in respect of the suit property whereby the first defendant agreed to sell the suit property for Rs. 9085 to the plaintiffs and in pursuance of the said agreement, the plaintiffs paid an advance of Rs. 1500 to the first defendant. Under the terms of the said agreement the sale was to be completed within three months and the first defendant asserted and declared in the said agreement that she was solely and absolutely entitled to the suit property and on the said representations of the first defendant the plaintiffs entered into the agreement of sale. On a scrutiny of the title deeds it became clear that the first defendant was entitled only to a life interest in the suit property. Thereupon the plaintiff called upon the first defendant to return the advance of Rs. 1500/ along with a sum of Rs. 200 by way of damages to which the first defendant sent a reply refusing to return the advance amount and repudiating the claim for damages and putting forward various frivolous objections. The first defendant thereafter sold the suit property to defendants 2 to 4. The present suit is for recovery of the advance amount of Rs. 1500 along with the claim for damages of rs. 200 with a charge on the suit property in respect of the advance paid. The plaintiff s further claimed interest on the advance amount from the date of agreement.

(3.) THE first defendant filed a written statement admitting the suit agreement, but contending that the suit agreement was entered into after a full scrutiny of the title deeds, that no warranty of title was given to the plaintiff and that the agreement was entered into with the full knowledge of the limited rights which she had in the property and that she was willing to perform her part of the contract within the stipulated period and that the default, if any, was only with the plaintiff and that defendants 2 to 4 are necessary parties to the suit.