LEKSHMIAMMAL Vs. S NAGALEKSHMIAMMAL

JUDGEMENT

(1.) LEGAL representatives of deceased plaintiff in O. S. No. 54 of 1980, on the file of Additional Sub Court, nagercoil, are the appellants.

(2.) SUIT filed by the deceased plaintiff was for specific performance of contract of sale, on the following allegations: Deceased plaintiff was an honorary physician and he was running a dispensary, and he was residing in the plaint schedule property from 1. 12. 1958 as atenant. The original owner was late Gomathi Ammal, mother of first defendant. The agreed rent was Rs. 35. Gomathi Ammal was sick and she was living with plaintiff and his family from June, 1968 and was receiving regular treatment from plaintiff for acute rheumatism, high blood-pressure and other diseases. She died in the plaint schedule building on 27. 1. 1976. It is said that on the death of Gomathi Ammal, the plaint schedule property was inherited by first defendant, who is her only heir V. R. Sundaram, husband of first defendant, was managing the affairs of the first defendant, and he was acting on her behalf in all matters regarding the plaint schedule property. After the death of Gomathi Ammal Sundaram demanded a rent of Rs. 70, and plaintiff began to pay the same from February, 1976 onwards. Because the plaintiff was a professional, he could not leave that house. He was compelled to pay that amount as rent. The husband himself was collecting the rent from plaintiff, and it was being sent by mail transfer to his account in the Bank. It is further said that towards expenses for the medical treatment of Gomathi Ammal, nearly rs. 10,000 had to be spent by plaintiff. He has also effected improvements to the building. It is said that the first defendant and her husband agreed to pay the amount to plaintiff within one year. But Sundaram did not want to honour his commitment, and the relationship between the parties became strained. Sundaram began to demand the plaintiff to vacate the premises, and there was exchange of letters, including lawyer's notice, asking the plaintiff to vacate the building. In the meanwhile, Sundaram was also transferred to the same place and, therefore, a demand was made for own occupation. Sundaram did not take legal proceedings, and time passed by, and in the meanwhile, first defendant's husband was transferred to Madurai, and his requirement for own occupation also ceased. At that time, they also thought of selling the property, and a publication was made in' Dhina Malar' , for sale. Through one V. S. Srinivasa Iyer, plaintiff came to know about the publication, and plaintiff also offered to purchase the property for a reasonable price. In paragraph 7 of the plaint, it is said that V. S. Srinivasa Iyer is a cousin of first defendant's husband. It is further said that through him, V. R. Sundaram agreed to sell the property to the plaintiff and pay to the first defendant such price, less Rs. 10,000 due to him on account of the amount spent on Gomathi Ammal. In paragraph 8 and 9 of the plaint, it is further said that the first defendant and her husband offered to sell the plaint property to the plaintiff for a total sum of Rs. 32,000 in full and final settlement of accounts between them. Plaintiff informed them that he was prepared to purchase the property on payment of Rs. 30,000. The price was agreed. Such an oral arrangement was made on 20. 12. 1979 at the residence of first defendant at kovilpatti, in the presence of first defendant and her husband, plaintiff, his son-in-law Sankaran, and one T. S. Narayana Iyer, father of plaintiff's son-in-law. It is further said that a sum of Rs. 5,000 was to be paid as advance, and the sale deed was to be executed on receipt of the balance sum of rs. 25,000, within six months. Plaintiff paid a token advance of Rs. 101. It is further said that the first defendant, expressed that out of the balance amount of Rs. 25,000, she would like to get a sum of Rs. 10,000 even before the expiry of a period of six months, for which also, plaintiff agreed. It is further said that the parties were to execute a deed of agreement for sale. Sundaram agreed that he will obtain a specific agreement from his brother, who is a practising advocate, embodying the terms of the agreement, and send the same to plaintiff, within a week, through his cousin V. S. Srinivasa Iyer. By 30. 12. 1979, plaintiff had made every arrangement for payment of Rs. 15,000 to the first defendant, and was waiting to receive the draft agreement. On 3. 1. 1980, plaintiff obtained a draft agreement through V. S. Srinivasa Iyer. The draft agreement had been prepared by Sundaram, in his own hand. On 4. 1. 1980, plaintiff was informed by his son-in-law that the first defendant and her husband wanted to withdraw from the commitment, and Sundaram had written to him that he had already sold the building to another party for a higher price. On enquiries by plaintiff, he came to know that the statement about the sale of the building was not correct, and on 17. 1. 1980, a suit notice was issued asking the first defendant to execute a sale deed and he was further informed that he was ready to pay the full price of Rs. 30,000. A reply was sent denying any such agreement. On 11. 2. 1980, first defendant, her husband and the second defendant came to plaintiff's house and wanted the building to be handed over to him. Second defendant further to be handed over to him. Second defendant further threatened the plaintiff that he will be forcibly evicted. Plaintiff had no other go, except to institute a suit against second defendant as O. S. No. 147 of 1980 for injunction restraining the second defendant from interfering with his possession. On 17. 1. 1980, plaintiff also informed second defendant and his parents not to take any sale either from first defendant or her husband, for which no reply was sent. Second defendant, according to plaintiff, is not bona fide purchaser for value. Second defendant is also a man of no means. It is further averred that there was great difficulty for the plaintiff to raise funds to purchase the building where he had been residing for over 21 years. The suit was, therefore, filed for specific performance of agreement of sale, directing the defendants to execute a sale deed after receiving the balance consideration of Rs. 30,000 and for other consequential reliefs.

(3.) WHEN the matter came for arguments, learned counsel for the appellants submitted that the question to be decided is, whether, on the available evidence, plaintiff has not proved his case when there is no proper counter evidence. Learned counsel for the respondents also had no serious objection for considering that question. The same will also be considered, apart from main point in this case.