A.L. PARTHASARATHI MUDALIAR Vs. VENKATA KONDIAH CHETTIAR

JUDGEMENT

(1.) THIS Letters Patent Appeal is preferred by the first defendant against the judgment of Ramakrishnan J. modifying the decree of the trial judge and directing the first defendant to execute a sale deed in favour of the plaintiff in respect of item 1 of the plaint schedule properties on receipt of Rs. 4750 in pursuance of the agreement to sell items 1 and 2 of the plaint schedule to the plaintiff. One Loganatha Mudaliar was the original owner of these two items of properties. He purchased item 1 in his name and item 2 in the name of his wife Rathnammal. He had two sons, the first defendant and the husband of the second defendant. His wife died in the year 1947 and he died in the year 1955. It was alleged in the plaint that the defendants in the suit entered into an oral agreement on 7 -2 -1957 to convey the two suit items for Rs.5750 and subsequently an agreement of sale was executed by both the defendants and a sum of Rs.1000/ - was paid as advance. According to the terms of the agreement the sale had to be completed within three months failing which the defendants had to pay to the plaintiff a sum of Rs. 5000 as and for damages to the plaintiff. Before the plaintiff entered into the agreement to purchase these two items of properties he made and enquiry in respect of the second item as it was purchased in the name of the first defendant's mother and the first defendant assured the plaintiff that his sisters would not claim these properties as they had already declared that they had no interest or title in the properties. The plaintiff was ready and willing to purchase these properties. The defendants subsequently evaded and neglected to execute a sale deed. The first defendant began to give out an excuse that his sisters were not willing to join with him in executing the sale deed, especially in respect of item 2, as they claimed title to the same on the ground that it belonged to their mother. It was also stated in the plaint that in case there was any difficulty for the defendants to execute a sale deed in respect of item 2 also. The plaintiff was willing to take a conveyance of item 1. The plaintiff also prayed that in the event of the court holding that specific performance of the contract cannot be ordered, the defendants may be directed to pay the plaintiff Rs. 5000 as liquidated damages. The plaintiffs prayed in the alternative that the defendants may be directed to receive a sum of Rs. 3000 and effect a conveyance of item 1 of the plaint schedule property and pay such compensation for then on -conveyance of item 2 as the court may fix.

(2.) THE first defendant filed a written statement denying the oral agreement. He stated that the written agreement was not read over to him and he was not aware of the contents of the document, as he was not well acquainted with or aware of the language in which the document was written. According to him, under the will of his father he got only Item 1 and Item 2 of the plaint schedule was bequeathed to his sisters and one Panchalamma and he had neither title nor interest in respect of Item 2 and therefore he could not convey Item 2 to the plaintiff. He also denied having received an advance of Rs. 1000 through Jagadisa Mudaliar. He contended that in any event the plaintiff cannot ask for specific performance as the contract could not be performed in entirety. The second defendant filed a separate written statement supporting the case of the first defendant. She stated that she was not in Madras at the time the alleged agreement was executed. She further stated that neither she nor the first defendant had any interest in the second item of property.

(3.) THE first defendant preferred an appeal in this court. Ramakrishnan J. who heard the appeal, agreed with the finding of the trial Judge, that the agreement is valid and binding on the defendants. But he is of the opinion that S. 15 of the Specific Relief Act would apply to the facts of this case and applying that section he directed the first defendant to execute a conveyance in respect of item 1 of the plaint schedule on receipt of a sum of Rs. 4750 (i.e., RS. 5750 less advance of Rupees 1000) from the plaintiff. The learned Judge dismissed the appeal subject to the above modification. It is against this judgment and decree of the learned Judge that the present appeal is preferred by the first defendant.