MANGALAM PILLAI Vs. C.S. APPAVOO UDAYAR

JUDGEMENT

(1.) THE first to the fourth defendants in O.S. No. 298 of 1966 in the court of the Subordinate Judge of Tiruchirapalli are the appellants. The plaintiff one C.S. Appavoo Udayar filed a suit for the specific performance of a contract under which the first defendant purported to convey the suit property for a sum and consideration of Rs. 11,500/ -. The plaintiff also sought for redelivery of possessions of the suit properties and for a direction as against the first defendant to account for the mesne profits ever since the date he was dispossessed of the properties to the date of actual re -delivery of possession. The relevant facts which led to the institution of the suit for specific performance on 3 -10 -1966 are as follows: -

(2.) THE defendants on the other hand would aver that the sale Ex. -A -3 is fully supported by consideration, as the recitals therein disclosed that these were pre -existing debts of the plaintiff which were paid off and discharged from and out of the sale consideration. The case of the plaintiff that the sale had taken place by misrepresentation and fraud and in order to stifle prosecution is denied. The first defendant expressly denies that he is guilty of any flagrant breach of trust nor has he abused the confidence alleged to have been placed in him by the plaintiff. The first defendant's case is that he let in the plaintiff's son as his lessee of the suit properties soon after the purchase and had to institute proceedings before the revenue court to evict him from the suit properties as he failed and neglected to pay the rent payable to the first defendant as lessee and that it was in such proceedings that he took possession of the properties on 4 -4 -1966 from the plaintiff's son. The first defendant reiterates that his sale of the properties under Ex. A -7 to defendants 2 to 4 and the dealings by them thereafter by which they transferred the properties to defendants 5 and 6, are all independent transactions which cannot be questioned or challenged by the plaintiff. The first defendant states that under Ex. A -4 which was a document contemporaneously registered along with Ex. A -3 the plaintiff acquired only a right of reconveyance and not a right to convey as alleged and in those circumstances, the demonstrable intention between the parties was that time prescribed under Ex. A -4 for such re -purchase should be the essence of the contract. As the plaintiff did not seek for any such reconveyance within the year, nor has he called upon the first defendant to execute such a deed of reconveyance within the time prescribed, the plaintiff has lost his right to seek for specific performance and that, therefore, the suit is misconceived.

(3.) THE learned Judge held that the first defendant did acquire a valid marketable title to the suit properties under Ex. A -3 and that it was not vitiated by misrepresentation, fraud or coercion as alleged by the plaintiff and it is not hit either by Section 23 or Section 16 of the Contract Act. On Issue 2, he found that the plaintiff was entitled to get the conveyance of the suit properties from the defendants, as, on a literal reading of Ex. A -4, the learned Judge was of the view that Ex. A -4 cannot be understood or interpreted as an agreement of reconveyance but only as an agreement of conveyance. He found that defendants 2 to 4, are not bona fide alienees of the suit properties and that they are not entitled to any protection by reason of the purchase of the suit properties under the registered document Ex. A -7 dated 29 -11 -1965. He held that the suit for specific performance was not barred by limitation and found Issue 4 regarding the rendition of accounts in favour of the plaintiff. He agreed with the plaintiff that the suit for specific performance has been properly valued and in the result, he passed the usual decree for specific performance directing defendants 1 to 4 to execute a registered sale deed in respect of the suit properties in favour of the plaintiff and gave incidental directions to the plaintiff to deposit the agreed amount into court to enable him to obtain the reconveyance. The usual default clause was provided for. He also gave a direction to defendants 1 to 4 to render an account to the plaintiff for the profits derived from the suit properties from the date of dispossession, namely, 4 -4 -1966 till date of delivery of possession. Certain consequential reliefs were also given in favour of the plaintiff whereby the dealings inter se as between defendants 1 to 4 on the one hand and defendants 5 and 6 on the other, were rendered invalid. It is as against this judgment and decree that the present appeal has been filed.