APPAVOO NADAR Vs. CHELLIAN NADAR

JUDGEMENT

(1.) The plaintiff in O.S.No.15 of 1977 on the file of the Subordinate Judge of Kuzhithurai, is the appellant in this appeal. The respondents are the defendants in the suit. The suit was laid for specific performance of an agreement of sale or, in the alternative, for recovery of the sum of Rs.80,000.00. The allegations on the basis of which the plaintiff wanted the reliefs may be set out as follows: On 18.5.1976, the first defendant orally agreed to sell the suit property to the plaintiff for a consideration of Rs.80,000.00. In pursuance of the said agreement, the plaintiff paid a sum of Rs.30,000.00 in cash on 18.6.1976. He also paid another sum of Rs.50,000.00 on 21.6.1976 by a draft as per Pay Order No.1028 of the Union Bank of India, Marthandam. The said draft was encashed by the first defendant on 23.6.1976. As the plaintiff's daughter was proposed for marriage to the first defendant's son, the plaintiff did not get the sale deed executed immediately. After the marriage, the plaintiff was pressing the first defendant to execute the sale deed on various occasions. Ultimately on 2.10.1976, the plaintiff pressed the first defendant to return the amount or to execute the sale deed and there was a wordy altercation between the plaintiff and the first defendant, but the first defendant did not yield to the request of the plaintiff but ill-treated his daughter and sent her away. Das, Dasayyan, Kamalam, Elias, Sivag-nanam, John James and Velappan were present at the time of the oral agreement for sale. In spite of notices dated 23.10.1976 and 23.11.1976, the first defendant has not executed the sale deed. On 2.11.1976, the first defendant sent a reply through his counsel raising false allegations. The plaintiff is entitled to get a sale deed executed and registered in his favour by the defendants and to get a decree for specific performance of the agreement of sale entered into on 18.5.1976 and for recovery of the suit property from the defendants. If, however, the Court is of the opinion that the plaintiff is not entitled to specific performance of the agreement of sale of the suit property, the defendants may be directed to pay the plaintiff the sum of Rs.80,000.00with future interest at the rate of 6 per cent per annum. Defendants 2 to 4 are the children of the first defendant. Subsequent to the notice dated 23.10.1976 issued by the plaintiff to the first defendant, the first defendant alienated the suit property to defendants 2 to 4.

(2.) The written statement of the first defendant ran as follows: The allegation that the first defendant agreed to sell the suit property in favour of the plaintiff for Rs.80,000.00 is false and the further allegation that the first defendant received an advance of Rs.30,000.00 is also denied. In connection with the marriage of the first defendant's son, who is an advocate, with the plaintiff's daughter, it was agreed by the plaintiff that he shall pay Rs.50,000.00 to the first defendant for the purpose of defraying the marriage expenses as well as for conveying a suitable property by the first defendant in favour of the plaintiff's daughter. Accordingly, the plaintiff gave the draft for Rs.50,000.00in favour of the first defendant on 23.6.1976, the date of the draft being 21.6.1976. As per that agreement, the first defendant executed a sale deed of a property consisting of nearly 1.75 acres of coconut garden and 1.50 acres of rubber plantation in favour of the plaintiff's daughter on 23.6.1976 itself. In the sale deed, the consideration was mentioned less to save registration expenses. It was the plaintiff who spent for the registration of the document. Because he had to meet the expenses, the plaintiff suggested that the consideration can be given at a low figure and the document be registered in Kulathoor Sub Registrar's Office in Kerala. The allegation that the plaintiff was pressing the first defendant to return the amount or to execute the sale deed is without basis. There was no ill-treatment of the plaintiff's daughter, nor did the first defendant send her away. The draft for Rs.50,000.00 was received and the amount was utilised in the manner referred to above. The other allegation with regard to the wordy altercatin between the plaintiff and the first defendant is also denied. No amount is due from the first defendant to the plaintiff. There was no demand on 2.10.1976 as alleged. The averment that the persons mentioned in the plaint were present at the time of the alleged oral agreement is false and is denied. The plaintiff is not entitled to any relief and the claim for specific performance is without basis. The description of the property is vague, erroneous and misleading. In the additional written statement, the first defendant attacked the alternative claim for the return of Rs.80,000.00 by stating that so far as there was no agreement to sell the property, the question of return of Rs.80,000.00 does not arise. The only amount received was Rs.50,000.00 and the first defendant reiterated in his additional written statement the circumstances under which and the purposes for which the said amount was received as set out in his original written statement.

(3.) Defendants 2 to 4 also contested the suit. Besides adopting the written statement of the first defendant, these defendants wanted to maintain the alienation in the form of settlements in their favour effected by the first defendant.