KALIANNA GOUNDER [DIED] Vs. KALIANNA GOUNDER

JUDGEMENT

(1.) This appeal at the instance of defendants 6 to 8 in O.S.277 of 1968, Sub-Court, Salem, is directed against the Judgment in A.S.No.79 of 1973 dismissing their appeal preferred against the decree in favour of the 1st respondent herein granting the relief of specific performance in respect of an agreement for sale Ex.A.1 dated 2 7.7.1964 executed by the 2nd respondent herein and his father deceased Chinna Gounder. The properties in question admittedly belonged to Chinna Gounder and the 2nd respondent herein. Under the agreement Ex.A.1 which was also registered on 13.11.1964, the 2nd respondent and his father agreed to sell certain properties to the 1st respondent for a consideration of Rs.14,000 and received Rs. 1,500 by way of advance. The 1st respondent had agreed to discharge certain mortgage and pronote debts due by the 2nd respondent and his father to one Kandasami Gounder amounting to Rs.11,2 72 within one year. The balance of Rs.1,228 was agreed to be paid and received at the time of the execution of the sale deed. According to the case of the 1st respondent, at the instance and instigation of the appellants, in November, 1964, the 2nd respondent and his father approached the 1st respondent and asked him to discharge the debt immediately and pay the balance of Rs.1,228 and take the sale deed and gave out that they would sell the properties to third parties if the 1st respondent did not do so. The 1st respondent declined to accede to the request of the 2nd respondent and his father. The 2nd respondent and his father entered into another agreement under Ex.B.1 dated 2 7.7.1964 for the sale of the same properties in favour of the appellants herein for a consideration of Rs.15,000. That agreement recited that a sum of Rs.2,000 had been received as advance by the 2nd respondent and his father and execution of the sale deed could be postponed till the disposal of that suit and believing those representations, the 1st respondent did not insist upon the execution of the sale deeo within one year as stipulated under the terms of Ex.A.1. The 1st respondent therefore instituted the suit for specific performance of Ex.A.1, impleading the appellants herein as defendants 6 to 8 and contending that the sale deed in their favour executed on 9.5.1968 was not valid and supported by considered and that Ex.A.1 was the only true and valid agreement of sale and further that the agreement under Ex.B.1 came into existence long subsequently and had been antedated.

(2.) The appellants, who were the main contesting defendants, resisted the suit contending that there was already a sale deed in their favour pursuant to an' earlier agreement under Ex.B.1 and that they had also been put in possession of the properties sold to them and further that the 1st respondent was not entitled to the equitable relief of specific performance on the strength of Ex.A.1. It was also the case of the appellants that the agreement under Ex.A.1 had not been entered into on 27.7.1964.

(3.) On the aforesaid pleadings of the parties, the two issues, which were tried by the trial Court were (1) whether the agreement Ex.A.1 in favour of the 1st respondent was prior to the agreement Ex.B.1 in favour of the appellants and (2) whether the 1st respondent was entitled to the relief of specific performance on the strength of Ex.A.1. On a consideration of the oral as well as the documentary evidence, the learned Subordinate Judge, Salem, came to the conclusion that Ex.A.1 in favour of the 1st respondent herin was the earlier agreement and that Ex.B.1 in favour of the appellants came to be executed subsequently and was antedated. It was also further found that the sale deed Ex.R, dated 9.5.1968 was not valid in view of Ex.A.1 and that therefore, the appellants did not derive any right to the properties sold thereunder. On those findings, the learned Subordinate Judge, Salem, granted a decree in favour of the 1st respondent herein directing the appellants and respondents 2 to 6 to execute a sale deed in respect of the suit properties and deliver possession within two months on deposit of a sum of Rs.1,228 by the 1st respondent within one month. Against that, the appelants herein preferred A.S.No.79 of 1973 before this Court. Sethuraman. J., who heard the appeal, was of the view that Ex.A.l was executed prior to Ex.B.1, that time was not of the essence of the contract and that the 1st respondent was entitled to a decree for specific performance. On those conclusions, the appeal was dismissed, the correctness of which is challenged in this Letters Patent Appeal. During the pendency of the Letters Patent Appeal, the 1st appellant died and his legal representatives have been brought on record as Appellants 4 to 7.