AHILANDATHAMMAL AND ORS. Vs. RAMASWAMI ODAYAR

JUDGEMENT

(1.) The above appeal has been preferred by the three Defendants against whom the Plaintiff's claim for specific enforcement of an agreement for sale executed by Defendants 1 and 2 has been decreed by the learned Subordinate Judge of Tiruchirappalli. The agreement is dated 17th February 1960 and relates to buildings in Karur Town, belonging to Defendants 1 and 2, a portion of which was under usufructuary mortgage in favour of the third Defendant for Rs. 5,000 under a deed, dated 31st January 1958, the period of redemption provided in the document being five years. The third Defendant is impleaded as the subsequent purchaser of the property under two registered sale deeds, exhibits B -3 and B -4, dated 29th May 1960, B -4 covering the properties under the usufructuary mortgage and exhibit B -3 taking in the remaining properties.

(2.) The agreement, exhibit A -l, covenanted for the sale of the properties by Defendants 1 and 2 to the Plaintiff or his nominee for a consideration of Rs. 20,000. Rs. 3,000 had been paid at the time of the execution of the agreement. The vendee was himself to discharge the usufructuary mortgage for Rs. 5,000 in favour of the third Defendant out of the consideration amount. For the vendors to buy landed property according to their convenience near about their residential village of Tirukattupalli, a sum of Rs. 10,000 of the consideration was to be left with the vendee. The vendee was to pay the said amount of Rs. 10,000 before the sub -registrar on behalf of the vendors when the vendors made their purchase, without any obstacles coming in the way of their purchase. The balance of Rs. 2,000 of the consideration was to be paid by the vendee at the time of the registration of the sale deed in his favour by the vendors. The time fixed for the completion of the sale was three months from the date of the document, that is, till 17th May 1960, and the vendee had to bear the registration and stamp charges. There is a provision in the agreement for the vendors giving as indemnity in the sale deed the landed property they intended purchasing. The agreement contains the usual default clause providing for the vendee forfeiting the advance amount on failure to take the sale deed within the period provided, and if the vendors were in default, they had to pay the vendee, besides the advance of Rs. 3,000 a further amount of Rs. 3,000.

(3.) The Plaintiff pleaded that he had always been ready and willing to fulfil his obligations under the agreement and take the sale deed in terms of the same, and that, while so, the third Defendant, who had full knowledge of the agreement for sale in favour of the Plaintiff, deliberately made Defendants 1 and 2 avoid the agreement, and took the deed of sale in his own favour. The principal defence was that the Plaintiff defaulted and failed to fulfil his obligations in terms of the agreement within the time specified, there was, therefore breach, that Defendants 1 and 2 had entered into an agreement for purchase of lands as provided for in the agreement exhibit A -l, that the Plaintiff had due intimation of the same in advance, that he failed to make payments and take the sale in terms of the agreement by 17th May 1960, even though called upon to do so, and that Defendants 1 and 2, having entered into contract with third parties, sold the property to the third Defendant bona fide to protect themselves from loss. Defendants 1 and 2 in their written statement pleaded further that the third Defendant was not previously appraised of the agreement, dated 17th February 1960 and that his purchase was bona fide.