KANNUPERUMAL Vs. SUSEELA

JUDGEMENT

(1.) THE plaintiff 2 and 4 in O. S. No. 72 of 1995 on the file of the Additional Sub Court, Tindivanam are the revision petitioners. The revision is directed against the dismissal of I. A. No. 353 of 2003 filed by the revision petitioners under Order I, Rule 10 C. P. C. to transpose the plaintiffs 1 and 3 as defendants 4 and 5 in the suit. The petition was dismissed on 18. 2. 2004.

(2.) THE revision petitioners along with the respondents 4 and 5 herein filed the suit against the defendants 1 to 3, viz. , the respondents 1 to 3 herein for specific performance of the agreement of sale dated 20. 3. 1995 and in the alternative to refund the advance amount of Rs. 20,000/- with interest at 18%. The first defendant is the mother and the defendants 2 and 3 are her sons. The first defendant got the suit properties allotted to her share in the partition between her and her sisters. The agreement of sale was entered into between the plaintiffs 1 to 4 and the defendants 1 to 3 on 20. 3. 1995 for sale of the suit properties by the defendants 1 to 3 for Rs. 1,20,000/- and accordingly Rs. 20,000/- was paid by way of advance on the day of agreement of sale. The defendants 1 to 3 is to execute the sale deed within five months, i. e. , before 20. 8. 1995. The plaintiffs always ready and willing to perform their contract. Since the defendants are delaying to execute the sale deed in favour of the plaintiffs, the suit was filed on 3. 4. 1995 and the plaint was amended as per order in I. A. No. 204 of 2002 dated 15. 4. 2002 appointing guardian to the first defendant, her husband and next friend since a certificate has been issued by the Home for Mentally Disabled (kdey fhg;gfk;) that the first defendant is a mentally retarded person.

(3.) THE suit was resisted in the written statement filed by the third defendant on 20. 4. 1995 denying the agreement of sale said to have been executed by the defendants 1 to 3 and further stating that the said agreement of sale has been forged. It is further stated that inasmuch as the first defendant is a mentally retarded person, the agreement of sale executed by her is invalid and not binding.