NALKOVAI Vs. SOUNDARAM

JUDGEMENT

(1.) AGGRIEVED against the concurrent judgments of both the courts below viz. , the Additional District Munsif Salem in O. S. No. 1230 of 1986 and the District Judge Salem in A. S. No. 85 of 1993, the second defendant viz. , one Nalkovai has filed this second appeal.

(2.) THE case of the plaintiff Soundaram before the Additional District Munsif, Salem can be stated, in short, as follows. The suit property was originally owned by one Chinnusamy son of Rocky Moopan. The first defendant viz. , Vijayakumar purchased the same under a registered sale deed dated 6. 12. 1979 as evidenced by Ex. A5. The first defendant entered into an agreement of sale with the plaintiff on 6. 8. 1986 for Rs. 5800/= and received Rs. 2500/= as advance from the plaintiff as evidenced by Ex. A1. The agreement was that the sale deed should be executed within one month. Possession of the property was handed over to the plaintiff. Document of title also was handed over along with Ex. A1 by the first defendant to the plaintiff marked as Ex. A5. The plaintiff was always ready and willing to perform his part of the contract and complete the sale transaction. While so, defendants 1 and 2 with ulterior motive and conspiracy appear to have created an agreement of sale ante dated as 30. 3. 1986 and sale deed dated 8. 8. 1986 in and by which both the defendants have determined to cheat and defeat the plaintiff's legal right upon the suit property. In spite of the notice issued by the plaintiff to the defendants, they have not only not complied with the agreement of sale but also given reply notice with untenable and false allegations. Therefore, the plaintiff happened to file the suit for specific performance.

(3.) THE suit has been resisted by both the defendants by filing separate written statements with more or less similar allegations to the following effect. The first defendant never executed any agreement of sale in favour of the plaintiff for Rs. 5800/= and he never received an advance of Rs. 2500/= for the same. It is true that the first defendant purchased the suit property in the year 1979 from Chinnusamy, the husband of the second defendant and at that time there was also an understanding between them that if in any case the first defendant happens to sell the suit property, it should be sold only to the said Chinnusamy. In the year 1986, the first defendant expressed his idea of selling the suit property to the second defendant and her husband and thereupon both of them agreed to purchase the suit property and in consequence, the agreement of sale was entered between them on 30. 3. 1986 for Rs. 7000/= and the first defendant received Rs. 1000/= as advance as evidenced by Ex. B1. Following that agreement, the first defendant executed a registered sale deed in respect of the suit property in favour of the second defendant on 8. 8. 1986 as evidenced by Ex. B2. In the meanwhile, with the sole intention of giving troubles to the second defendant and getting the suit property somehow or other, the plaintiff and his persons approached the first defendant on 10. 8. 1986 and obtained his signature in an agreement of sale ante dated as 6. 8. 1986 under coercion. Out of fear only the first defendant put his signature upon Ex. A1 the alleged ante dated agreement of sale and at that time, the plaintiff and his persons also obtained the prior document of title of the year 1979 marked as Ex. A5 from the plaintiff highhandedly. The second defendant is not at all concerned with the alleged agreement dated 6. 8. 1986 between the plaintiff and the first defendant and that there is no conspiracy between the second defendant and the first defendant and it is not correct to say that the agreement of sale dated 30. 3. 1986 and the consequent sale deed dated 8. 8. 1986 in favour of the second defendant is a created and fabricated one with the knowledge of the agreement between the plaintiff and the first defendant. The second defendant is a bona fide purchaser for value from the first defendant. Probably, the plaintiff and the first defendant could have colluded to create the agreement of sale dated 6. 8. 1986 with ulterior motive of getting unjust benefits and thereby the suit on the whole is liable to be dismissed.