T KAMAKSHI Vs. K JAYARAMAN

JUDGEMENT

(1.) THE 2nd defendant is the appellant in this Second Appeal. Respondents 1 and 2 plaintiffs filed the suit O.S. No. 63 of 1978 for specific performance of Ex. A1 sale agreement dated 25.4.1978 executed by the 3rd respondent-1st defendant, agreeing to sell the suit house to the 1st plaintiff for a sum of Rs. 7500/- Though Ex. A1 sale agreement is with reference to the entire suit property, the plaintiffs claim relief of specific performance only with reference to 3/5th share of the suit property. A sum of Rs. 2,000/- was paid as advance towards the sale consideration. At about that time, there was dispute between the 1st defendant and his sisters as to whether the 1st defendant was entitled to the entirety of the suit property, and the 1st defendant as plaintiff in O.S. No. 93 of 1972 against his sister and sister's husband and others claimed that he was the full owner of the property. THE 1st defendant was also not in possession of the suit property and the possession was with his sister Valli. THErefore, in the above said Ex. A1 Sale Agreement, it was provided thus:?

(2.) THE trial court dismissed the suit for specific performance, holding that it was impossible to perform the sale agreement, that the suit was out of time and that the 2nd defendant was a bona fide purchaser However, the trial court dismissed the suit, directing the 1st defendant to return the sum of Rs. 2,000/- to the 1st plaintiff with interest at 6% per annum from the date of the suit till the date of realisation.

(3.) ON the other hand, the learned counsel for the 1st respondent-plaintiff made the following submissions: The lower appellate Court is right in having held that the 2nd defendant is not a bona fide purchaser. Further, even though the sale agreement was for the entire suit house property, there is no bar for granting specific performance for the above said 3/5th share thereof, as has been granted by the Lower Appellate Court. In this connection he relies on S. 12 of the Specific Relief Act.