SELLAPPA CHETTY Vs. MARAPPA GOUNDAR

JUDGEMENT

(1.) DEFENDANTS 1 to 3 have filed this appeal against the judgment and decree of the learned subordinate Judge, Erode, in O. S. 24 of 1956. The plaintiffs filed the suit for specific performance of a contract of sale. The plaint allegations were briefly as follows. Defendants 1 to 3, who formed an undivided Hindu family, owned the suit properties. The first defendant was the manager. Defendants 1 to 3, the first defendant acting on behalf of his minor sons, sold them to one Arumugham chettiar for Rs. 5000 on 15-7-1948. Simultaneously, Arumugham Chettiar executed an agreement of reconveyance of the properties to the defendants 1 to 3 for a consideration of Rs. 5000 and also subject to the condition that the sale price should be paid in any Chitrai month within ten years of the date of the agreement. On 11-7-1949, defendants 1 to 3 assigned their rights under this agreement to the plaintiffs for a consideration of Rs. 14,912-8-0. There were specific directions in this agreement regarding the manner and the time of the payment of this item of consideration with liabilities inter se provided in case of default of the payment in the manner stipulated in this agreement. We shall refer, a little later in this judgment to these special conditions, as they play an important part in the decision of this case. In accordance with this agreement, the plaintiffs, after having paid Rs. 5000 as advance at the time of the agreement itself, got ready the balance of the sale price. Rs. 9912-8-0 before the date stipulated in the agreement for that payment, and informed defendants 1 to 3 of that fact. But they defaulted. They also defaulted in the performance of other obligations which were enjoined in the agreement, including the obligation to contact Arumugham Chettiar and obtaining a conveyance from him to the plaintiffs. Thus, the plaint proceeded on the principal basis, that the plaintiffs were ever ready and willing to keep up to their terms of the bargain, but that defendants 1 to 3 committed breach of the contract. Plaintiffs were willing and ready to perform their part of the bargain and they filed the suit for specific performance of this agreement dated 11-7-1949. There was also a plea that, as defendants 1 to 3 committed breach of the contract, they would have according to the terms of the contract, to forgo Rs. 4912-8-0 out of the consideration and be content with Rs. 10000, of which, as has been just now mentioned, Rs. 5000 was paid as advance at the time of the agreement, and the balance of Rs. 5000 was deposited by the plaintiff: in the Coimbatore City Cooperative bank.

(2.) THE plaintiffs further alleged that, after the death of Arumugha Chettiar, which occurred three months before the suit, his heirs, defendants 4 to 6, were bound to conveyed the suit properties to the plaintiffs as per the agreement aforementioned. However, defendants 1 to 3, after defaulting in their agreement with the plaintiffs, subsequently assigned their rights to the 7th defendant. This assignment will not avail against the plaintiffs right to obtain specific performance.

(3.) DEFENDANTS 1 to 3, in their written statement, contended that the default in keeping up the terms of the bargain, was on the part of the plaintiffs. They denied the plaintiffs' allegation about the plaintiffs having been ready to perform the terms of the agreement as recited in the plaint. They next contended that in the agreement, time was of the essence of the contract. There was a plea that, as the agreement to the plaintiffs purported to assign a right in immovable property, the agreement was a void one. No doubt, it was not specifically alleged in the written statement that the agreement consequently was void for want of registration. But such a contention appears to be implicit in the plea, and it was raised specifically both in the Memorandum of appeal as well as in the arguments advanced before us by the learned counsel for the appellants (defendants 1 to 3 ). It was next contended that the agreement was a contract to enter into another contract, and such a bargain was not known to law. A further plea was that the agreement to resell was special to Arumugham Chettiar and could not be enforced against his heirs.