SARASWATHY Vs. MEENAKSHY

JUDGEMENT

(1.) The second defendant in O.S.NO.103 of 1987 on the file of the Principal Sub Court, Pondicherry is the appellant herein. The first respondent who is the plaintiff filed a suit for specific performance of contract of sale and for permanent injunction. The parties are described as per their rankings in the suit.

(2.) Following are the plaint averments: The first defendant is the owner of the suit property and he entered into an agreement of sale on 10.7.1984 with the plaintiff agreeing to convey the suit property for a sum of Rs.15,500/-. The first defendant also received a sum of Rs.12,500/- towards part of sale consideration from the plaintiff at the time of execution of the suit agreement. The plaintiff's mother-in-law viz. Rukmani is the sister of the first defendant. Rukmani and her husband were living in the suit property for the past 20 years. The plaintiff after her marriage had come to reside in the suit property along with her husband and mother-in-law. As per the suit agreement the first defendant has agreed to execute the sale deed in favour of the plaintiff and convey the suit property within three months from the date of the obtaining permission under Urban Land Ceiling Act. At the instance of one Kaliyavaradan, son of Perumal of Veemakoundanpalayam the plaintiff and the first defendant jointly applied for permission for the sale of suit property under the Urban Land Ceiling Act and necessary permission was also granted. When the plaintiff requested the first defendant to execute the sale deed after receiving the balance sale consideration, the first defendant refused to execute the sale and demanded higher price. The first defendant in collusion with the second defendant entered into a subsequent agreement dated 4.10.1984 for the sale of suit property to defeat the rights of the plaintiff. Both the defendants have also obtained a decree for specific performance to the suit property in O.S.NO.41/85 on the file of First Additional Sub-Judge, Pondicherry. The second defendant does not get any right by virtue of said decree. The second defendant is the neighbour of the plaintiff. The first defendant failed to perform his obligation as per the agreement and hence, both the defendants have to jointly execute the sale deed in favour of the plaintiff. The plaintiff caused lawyer's notice on 27.7.1986 and the defendants refused to receive the same. The plaintiff is always ready and willing to perform her part of the contract. The defendants are also interfering with the peaceful possession and enjoyment of the suit property by making untenable claims. Hence, the plaintiff filed a suit seeking the above said reliefs.

(3.) The first defendant remained ex parte. The suit was resisted by the second defendant by filing a written statement. In the written statement, the second defendant has stated that he had obtained decree in her favour for specific performance in O.S.NO.41/1985 on the file of the First Additional Sub Judge, Pondicherry. This decree was obtained on merits and not on collusion between the defendants 1 and 2 as claimed by the plaintiff. The suit in O.S.NO.41/1985 was contested by the first defendant. The first defendant offered to sell the suit property for a sum of Rs.15,500/- by entering into an agreement. The first defendant also received a sum of Rs.2000/- as advance on 4.10.1984. As per the said agreement, the first defendant agreed to sell the property within one month from the date of permission obtained to effect the sale of the property. The second defendant taken steps to get necessary permission from the Competent Authority after obtaining signature of the first defendant and also handed over the token to the first defendant for further getting the permission. But as against the agreement, the first defendant made a representation to the Competent Authority stating that he was withdrawing the application. The second defendant caused lawyer's notice but the first defendant refused to receive the same. So the second defendant filed O.S.No.41/85 on the file of the First Additional Sub Judge, Pondicherry and obtained decree. After decree the second defendant filed E.P.No.131/87 for execution sale deed in his favour as per the decree. The other averments of the plaint have been denied. Since the plaintiff is closely related to the first defendant, she tried to avoid the bonafide transaction between the second and first defendants by creating some ante-dated instrument. The first defendant obviously executed an agreement on 5.7.1982 agreeing to sell the property in favour of the second defendant. The period of agreement dated 4.10.84 was over as the plaintiff has no money to buy the suit property and subsequent agreement was entered. It is denied that the plaintiff have been in possession of the suit property along with parents-in-law. The father-in-law of the plaintiff one Vinayagam has executed a lease deed in favour of Mannangatti, son of Ramachandran, brother of the first defendant as on 6.8.1978 and was in occupation of the undivided part of plot owned by the first defendant and his brother Ramachandran.