RAMASWAMI GOUNDER Vs. KUPPUSWAMI GOUNDER AND ORS.

JUDGEMENT

(1.) The plaintiff in O.S. No. 112 of 1972 in the Court of the Subordinate Judge, Udumalpet, is the appellant. He filed a suit for recovery of Rs. 10,175 with interest and costs. The suit property belonged to defendants 1 to 3, who are brothers and also their mother Muthammal and their brother Chinnappa Gounder. The extent of the property is 14 acres and 9 ¼ cents. The plaintiff purchased Chinnappa Gounder's one fifth share. Muthammal, the mother of the first three defendants, executed a settlement deed in favour of her daughter -in -law, the 4th defendant. Thus, the four defendants had four -fifths share in the said property. There was an agreement between the plaintiff and the four defendants on 28th April 1971, marked as Ex. B -2 in the case regarding the sale of that four fifths share in the said property. The consideration for the sale was Rs. 58,000, Time for completing the transaction was three months. A sum of Rs. 10,000 was paid as advance on 24th May, 1971. The agreement contemplated delivery of possession to the plaintiff on his payment of Rs. 10,000 as advance. The balance was payable before the Sub -Registrar. The agreement provided that in case the plaintiff did not pay the balance and have the sale deed registered, he would lose the advance of Rs. 10,000. The defendants could take over possession of the property and harvest the crops. If the defendants failed to execute the sale deed, then the plaintiff could take proceedings in court. As damages, the plaintiff could adjust a sum Rs. 10,000 and pay the balance of Rs. 38,000 in court. In the receipt that was given on 24th May, 1971 marked at Ex. A -1, it was stated that the defendants would discharge their liabilities and that in case the sum of Rs. 10,000 was not sufficient to discharge all the debts, then they would render an account to the plaintiff and receive the amount 15 days prior to the expiry of the period of three months and receive the balance before the Sub -Registrar as provided in the agreement. The period of 3 months would elapse by 27th July 1971. On 22nd July 1971, there was a public notice in the newspaper 'Malai Murasu' on behalf of one Kunjammal, the sister of the defendants, in which it was stated that the defendants were illegally trying to sell the properties of the father. Muthu Gounder, that the properties belonged to Chellammal and Kunjammal, the daughters of Muthu Gounder, and that the defendants had no right to transfer them. The plaintiff alleged that on seeing this notice he sent a telegram calling back the sum of Rs. 10,000. The defendants did not comply with this telegraphic request and sent instead a reply notice through their counsel on 9th August, 1971, Ex. A -3. There was a reply to it from the plaintiff's counsel, dt. 25th August 1971 under Ex. A -4, and the suit came to be filed subsequently for the recovery of the sum of Rs. 10,000 with interest. Defendants 1, 3 and 4 were absent and set ex parte. The second defendant alone contested the suit. In brief, his defence was that the actual consideration for the sale of the property was Rs. 80,000. that the plaintiff paid Rs. 10,000 on 24th May 1971, that he agreed to make another payment of Rs. 22,000 within one month and the balance in two months thereafter and that the plaintiff was not in a position to raise necessary funds, so that he set up his (defendant's) sisters to make this publication so as to claim the refund of the sum of Rs. 10,000. It was contended that the sum of Rs. 10,000 was not returnable to the plaintiff under the terms of the agreement.

(2.) The learned Subordinate Judge held that the plaintiff committed breach of contract and that even if the defendants were at default, the plaintiff could only file a suit fox specific performance and could not get back the sum of Rs. 10,000. The suit war accordingly dismissed and the plaintiff is now in appeal in this court.

(3.) Two questions arise in this appeal. The first is whether there was a breach of contract at the instance of the plaintiff, and the second is whether the defendants are entitled to forfeit the sum of Rs. 10,000. The contention of the defendants that the property was agreed to be sold, not for Rs. 58,000, as stated in Ex. B -2, but, for Rs. 80,000 has absolutely no evidence to support it. The consideration as set out in Ex. B -2, will thus be the only, amount that was payable by the plaintiff to the defendants for the purchase of the said property. The plaintiff had already purchased one fifth share from Chinnappa Gounder, the brother of defendants 1 to 3. It is not as if the plaintiff was unaware of the existence of the two sisters to the defendants. In his evidence he stated that he had decided not to purchase the property even before the publication in 'Malai Murasu'. According to him he was confirmed in his view on seeing Ex. A2 publication. The submission that the plaintiff was not in a position to proceed further with the performance of the contract only because of the publication in 'Malai Murasu' is thus inconsistent with his own evidence. It was stated by the learned counsel for the respondents that the real reason behind the plaintiff's non -performance of his part of the contract was that he could not muster the necessary funds. Whatever may be the reason there has been a breach on the part of the plaintiff. There was no representation on behalf of the defendants before the agreement that their sister had nothing to do with the property so as to enable the plaintiff to rely on the advertisement. The plaintiff went about the purchase even without obtaining an encumbrance certificate and making any other enquiry. He was thus prepared to take a chance in purchasing the property. His statement that he did not pursue the transaction because of the publication in 'Malai Murasu' is not convincing. In these circumstances, the finding of the court below that there was a breach at the instance of the plaintiff cannot be interfered with.