KUMARASAMY Vs. S K JOHN DIED

JUDGEMENT

(1.) THE appellants are defendants before the trial court. THE first respondent/plaintiff instituted O. S. No. 104 of 1984 on the file of learned subordinate Judge of Poonamallee for specific performance of Ex. A-1 agreement dated 19. 9. 1982 alleging that the appellants undertook to convey the suit property measuring 1 acre and 84 cents in his favour for a sum of Rs. 1,85,000 and that they had received Rs. 15,000 as advance on the same date. Possession was also given to him pursuant to the sale agreement. THEy permitted him to make lay-outs of the property and also to negotiate with third parties for the sale of the land. THEy also agreed to receive the balance of sale consideration and register the document within a period of one year. After taking delivery of possession he got the lands measured in January, 1983 in the presence of the first appellant. Since the sale did not fructify, notices were exchanged between the parties as per Ex. A-1 dated 11. 1. 1983, A-5 dated 19. 1. 1983, A-6 dated 21. 1. 1983, A-7 dated 3. 2. 1983, A-8 dated 5. 2. 1983, All dated 17. 2. 1983, A-15 dated 10. 10. 1983. THE mediation also did not yield any result. THE first respondent was always ready and willing to perform his part of the obligation as per the agreement.

(2.) APPELLANTS 1 and 2 are father and son. They denied that they entered into any agreement with the first respondent to sell the suit property for Rs. 1,85,000 on 19. 9. 1982 or at any time and that they received rs. 15,000 as advance. They pleaded that the first respondent contacted them for the sale of a piece of land measuring 40 cents at Thandurai Village . They were asked to come to sub Registrar's Office at Poonamallee on several occasions to execute the sale deeds in the name of the nominees of the first respondent. On that occasion they affixed their signatures on various papers on account of trust and confidence reposed by them in the first respondent. They were under the impression that they have signed those papers only in respect of the sale of the said 40 cents of land. For the sale of that piece of land they were paid on the whole a sum of Rs. 16,500. The first respondent appears to have fabricated Ex. A-1 agreement taking advantage of his undue influence over the appellants. The first respondent was never given possession of the suit property either in January, 1983 or at any time. These appellants sever permitted the first respondent to form lay-cuts in that land. Instead in pursuance of Ex. B-5 agreement they delivered possession of the suit lands to the third appellant for plotting out them into house sites. The original title deeds of the property were also delivered to the third appellant along with ex. B-5 on 10. 9. 1982.

(3.) THE third appellant as D. W. 2 deposes that on 10. 9. 1982 appellants 1 and 2 undertook to convey the suit land to him and executed Ex. B-5 in his favour. D. W. 3 Chandrasekar attestor to Ex. B-5 speaks about the execution of the document by appellants 1 and 2 and the payment of advance of Rs. 5,000 to them by D. W. 2 and on the strength of the evidence of these two witnesses learned counsel for the appellants argued that Ex. B. 5 came into existence on 10. 9. 1982 which is prior to Ex. A-1 in point of time and hence the trial Court erred in granting the relief of specific performance in favour of the first respondent relying on Ex. A-1.