R VELAMMAL Vs. R DAIVASIGAMANI

JUDGEMENT

(1.) The defendant is the appellant herein. The first plaintiff is the brother-in-law of the second plaintiff. The third plaintiff is the co-brother of the first plaintiff. The plaintiffs filed O.S. 118 of 1983 for specific performance of the sale agreement dated 13-7-1980. The case of the plaintiffs is as under :- The defendant agreed to sell her property to the plaintiffs under a sale agreement dated 13-7-1980 for a sum of Rs. 2,35,000/-. On the date of the execution of the sale agreement a sum of Rs. 1 lakh was paid by way of advance by the plaintiffs to the defendant. Among the plaintiffs the first plaintiff agreed to purchase half of the suit property and plaintiffs 2 and 3 agreed to purchase 1/4th share each in the suit property. In pursuance of the above said agreement possession of the property was handed over to the plaintiffs. According to the sale agreement dated 13-7-1980 the sale transaction should be completed within one year from the date of the agreement. Since a suit filed by one Mehaboob Bivi against the defendant was pending, the sale transaction could not be completed within the period stipulated in the agreement. Hence, the parties agreed to extend the period by another six months for completing the transaction. An endorsement was made to that effect on 11-7-1981, on the sale agreement. The defendant also received another sum of Rs. 10,000/- for the purpose of discharging a prior mortgage. An endorsement was made in the sale agreement on 15-12-1981 to the effect that the defendant received Rs. 10,000/- from the plaintiffs. In the sale agreement dated 13-7-1980 there is a clause stating that if the defendant was unable to execute the sale deed with regard to the A-Schedule property, she agreed to execute the sale deed with regard to the B-Schedule property by treating the advance amount of Rs. 1 lakh as sale consideration. The plaintiffs were ready and willing to perform their part of the contract, but the defendant refused to execute the sale deed on the ground that the suit filed by the said Mahaboob Bivi is still pending. Thereafter; the plaintiffs sent a notice dated 10-1-1982 calling upon the defendant to execute the sale deed after receiving the balance of sale consideration, since the defendant refused to execute the sale deed, the plaintiffs came forward with this suit.

(2.) The case of the defendant is as under :- The defendant executed the sale agreement in favour of the plaintiffs for the purpose of obtaining money to perform the marriage of her daughter. The fact that Mehaboob Bivi filed the suit O. S. No. 20 of 1981 against the defendant was already known to the plaintiffs. The possession was not handed over to the plaintiffs as alleged. Since the said Mehaboob Bivi filed the above suit with regard to the A-Schedule property, the defendant was not in a position to execute the sale deed in favour of the plaintiffs. The said Mehaboob Bivi filed an appeal before the High Court and obtained an order of interim injunction restraining the defendant from interfering with her possession and enjoyment of the suit property. Therefore, according to the defendant she was unable to perform her part of the contract. There was a Panchayat in which the plaintiffs agreed to take back their advance amount paid to the defendant. The B-Schedule property was not agreed to be sold to the plaintiffs. It was shown only as security for the advance amount received by the defendant. The defendant obtained the amount from the plaintiff only as a loan and the amount was not received as advance for the sale of the suit properties. Since the defendant was unable to execute the sale deed without encumbrance, the sale agreement has become infructuous. Therefore, the suit is liable to be dismissed.

(3.) The plaintiffs filed seven documents. The defendant filed four documents. The first plaintiff examined himself as PW 1. The husband of the defendant examined himself as DW 1. One Govindasamy was examined as DW 2. Considering the facts arising in this case, the trial Court decreed the suit as prayed for with costs, directing the defendants to execute the sale deed after receiving the balance of sale consideration. The plaintiffs were directed to deposit the balance of sale consideration within three months from the date of the judgement. It is against this judgement and decree, the present appeal has been preferred by the defendant.