P ALAGESAN Vs. A MARIADAS

JUDGEMENT

(1.) THIS appeal arises out of the suit for specific performance of the contract entered into by the plaintiff with the first defend ant on 19.11.1981. Defendants 2 to 7 are the children of the first defendant. The agreement was that the plaintiff should pay a sum of Rs. 2,50,000/- as consideration for the purchase and on the date of the agreement, he paid a sum of Rs. 25,000/- by way of advance. It was agreed that the transaction should be completed within three months from the date of agreement and that the first defendant should discharge all the encumbrances over the proper ties. It was also stated in the agreement that the first defendant would bring all his children and make them parties to the sale deed in favour of the plaintiff. It is not in dispute that a total sum of Rs. 2,00,000/- was paid by the plaintiff to the first defendant on different dates and the time for completion of the contract was being extended periodically. Ultimately, the suit was filed when, according to the plaintiff, he came to know that the defendants were taking steps to sell the property to others and thereby deprive the plaintiff of his interest.

(2.) THE prayer in the plaint is for specific performance of the contract or in the alternative for return of the sum of Rs. 2,00,000/- paid as advance by the plaintiff with interest thereon.

(3.) LEARNED counsel for the plaintiff refers to the evidence of P.Ws. 1 and 2 and submits that at the time when the advance was paid the first defendant's eldest son was present and the consideration was paid to both the first defendant and his son. According to learned counsel, the sons were aware of the transaction and they had consented thereto orally. We cannot accept this contention as evidence on record is wholly insufficient. Even the evidence of P.W. 2 does not go to the extent of proving that the eldest son of the first defendant was a party to the agreement.