DAYALAN Vs. MALLIKA

JUDGEMENT

(1.) THIS appeal is filed against the Judgment dated 23. 09. 1991 in O. S. No. 39 of 1988 on the file of Sub Court, tindivanam in and by which the learned Subordinate Judge after analysing the records found that the the plaintiff is entitled for suit claim and accordingly decreed the suit. The defendants 2 and 3 are appellants herein.

(2.) FOR convenience, the parties are referred as arrayed in the Original Suit. The brief facts of the case are as follows:-2 (1) The suit property belongs to the first defendant. The first defendant proposed to sell the suit property to the plaintiff. The plaintiff also agreed to purchase the suit property from the first defendant. In this connection, the first defendant and the plaintiff entered into an agreement on 17. 7. 1987. The sale price was fixed at Rs. 30,500/- (Rupees thirty thousand and five hundred only ). On the date of agreement itself, the plaintiff paid a sum of Rs. 4,000/- (Rupees four thousand only) as advance to the first defendant. The balance amount was to be paid by the plaintiff to the first defendant within one year from the date of agreement and the plaintiff has to get the sale deed executed by the first defendant at the cost of the plaintiff. In case, the plaintiff fails to get the sale deed executed by the first defendant as stated above she has to forego the sum of Rs. 4000/- (Rupees four thousand only) which she has paid as advance on 17. 07. 1987. If the first defendant failed to execute the sale deed as aforesaid, the plaintiff is entitled to get the sale deed executed as per law. The above agreement was reduced into writing and a deed of agreement was executed on 17. 07. 1987. The first defendant delivered the suit property to the plaintiff on the date of agreement. Since then the plaintiff has been in possession and enjoyment of the suit property. 2 (2) Apart from the payment of Rs. 4000/- (Rupees four thousand only) which the plaintiff has paid as advance to the first defendant the plaintiff paid a sum of Rs. 3500/- (Rupees three thousand five hundred only) on 21. 12. 1987 and a sum of Rs. 20,000/- (Rupees twenty thousand only) on 07. 01. 1988 to the first defendant towards the sale price. The above said payments have been endorsed in the deed of agreement and the first defendant has signed in the above endorsements. Thus, a total sum of Rs. 27,500/- (Rupees twenty seven thousand five hundred only) has been paid by the plaintiff to the first defendant towards the sale price. Thus a sum of Rs. 3000/- (Rupees three thousand only) only remain to be paid by the plaintiff to the first defendant. The plaintiff has been always ready and willing to pay the said sum of Rs. 3000/- (Rupees three thousand only) to the first defendant and get the sale deed executed at the plaintiff's cost. The plaintiff has demanded the first defendant several times to receive the balance amount of rs. 3000/- (Rupees three thousand only) and execute the sale deed at her cost. On 01. 02. 1988 the plaintiff finally demanded so. But the first defendant has not come forward to do so. 2 (3) The defendants 2 and 3 are fully aware of the suit agreement entered into between the plaintiff and the first defendant. In fact, the entire village people know about the suit agreement. But all the three defendants have colluded together and they want to cheat the plaintiff by trying to get a deed of sale in the name of either the second defendant or the third defendant. After having executed the suit agreement dated 17. 7. 1987 in favour of the plaintiff, the first defendant has no right to enter into an agreement of any kind with the defendants 2 and 3 or any other persons. Hence, even if all the three defendants have colluded together and brought any sale deed or other deed in favour of either the second defendant or the third defendant, the same will not bind the plaintiff. But the defendants 2 and 3 are trying illegally to get a sale deed from the first defendant in respect of the suit property. They have no right to do so. The first defendant also has no right to execute any sale deed in favour of the defendants 2 and 3 in contravention of the sale agreement which she had executed in favour of the plaintiff. Hence the suit.

(3.) THE Written statement filed by the first defendant reads as follows: the suit document namely, agreement of sale is not enforceable in law. There is no sale agreement entered into between the plaintiff and the first defendant. The defendant came to know that during the month of September, 1988 the plaintiff purchased the suit property from one J. Gopalakrishnan. The suit document is forged one. In fact, the suit property was sold by the first defendant to the third defendant and hence the suit is liable to be dismissed.