VASANTHA AMMAL Vs. BABU CHETTIAR

JUDGEMENT

(1.) ANIM adverting upon the judgment and decree dated 02. 08. 1992 in O. S. No. 20 of 1982, which is one for specific performance, dismissed by the learned I Additional Subordinate Court, this appeal is focussed. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court.

(2.) THE whole kit and caboodle of facts and figures placed before the trial court warrants this Court to scan and scrutinize the records and infer and understand the case of both sides for being quintessentially and briefly portrayed the germane facts thus: niggard and bereft of details, the case of the plaintiffs would be as under: a) The suit properties, viz. , a house and nanja lands belonged to the defendants 1 and 2. The plaintiff and the defendants entered into an agreement to sell on 09. 07. 1979 whereby the latter agreed to sell the same in favour of the former for a total sale consideration of Rs. 41,000/- and out of it, a sum of Rs. 24,500/- was paid by the proposed purchaser in favour of the owners of the properties as advance and the remaining was undertaken by her to be paid to the other side on or before 11. 10. 1979, intending that time should be the essence of contract. b) Despite the plaintiff having been ready and willing to perform her part of the contract by paying the remaining part of the sale consideration and getting executed in her favour, the sale nonetheless, the defendants had an volte face and procrastinated their performance. However, the said owners all of a sudden sold the agricultural items of the suit properties in favour of D3, even though the fact remains that the plaintiff under the said agreement to sell had been put in possession of the house property and consequently, she and her family members have been residing there, in addition to the landed properties also having been put in possession of the plaintiff and she having raised crops. Nevertheless, the third defendant was attempting to take forcibly and illegally the possession of the suit property. c) The plaintiff's lawyer's notice dated 02. 02. 1982 to defendants 1 to 3 evoked no positive response from them, but to the shock and surprise of the plaintiff, defendants 1 and 2 sent reply denying in toto the very execution of the agreement to sell itself. D3 also sent a similar reply, in addition to claiming that he was the bona fide purchaser of the landed properties. D3 is not a bona fide purchaser, without having knowledge about the pre-existing suit agreement to sell. d) Hence, the suit for specific performance.

(3.) REMONSTRATING and denying, gainsaying and impugning the allegations/averments in the plaint, D1 filed the written statement, which was adopted by D2, the gist and kernel of them would run thus: a) The suit agreement to sell was not executed by the defendants 1 and 2. One K. N. Subramanian approached the defendants 1 and 2 during April 1979 and evinced and expressed his desire to purchase the suit properties; after due negotiations the house property and 2 acres and 54 cents of land alone were agreed to be sold; whereupon at the request of the said Subramanian, the agreement to sell emerged on 19. 04. 1979 in the name of one Muthusamy Iyer and D1 and D2, Muthusamy Iyer did not approach the defendants personally stipulating three months' period as the time for performance, apparently indicating that the time was the essence of the contract. Under the said agreement to sell, a sum of Rs. 20,000/- was paid as advance by Subramaniam in favour of D1 and D2 and he undertook to pay the balance, at the time of registration of the sale deed. b) However, when the time stipulated therein was about to expire, the said Subramaniam approached the defendants on 09. 07. 1979 and requested for extending the time for performance by three more months for which, the defendants 1 and 2 were not willing. Whereupon the said Subramaniam paid a sum of Rs. 4,500/- and requested defendants 1 and 2 to execute another agreement to sell and as a token of it, the said Subramaniam got the signatures of D1 and D2 on stamp papers and it was agreed between them that on or before 09. 10. 1979, the sale deed should be got executed from the defendants, after payment of the remaining sale consideration. As such, there was no privity of contract between the plaintiff and the defendants 1 and 2. The possession of the suit properties was not handed over either to the plaintiff or to Subramaniam. Subsequently, no steps were taken by Subramaniam to get the sale deed executed by D1 and D2. c) At no point of time, the plaintiff approached the defendants 1 and 2 for getting the sale executed by them after paying the remaining sale consideration. In fact, Subramaniam himself expressed his inability to get the transaction completed and thereupon, he abandoned his right under the said agreement. It is the said Subramaniam, who instigated the plaintiff to file the suit. d) The agricultural land are in occupation of the tenants of D1 and D2 and they are cultivating it, after executing muchalikas in favour of D1 and D2 and they were paying rents to D1 and D2. In respect of the house property, an agreement to sell emerged between D1 and D3 on 14. 12. 1981. D3 by way of part performance was put in possession of the suit house. However, the plaintiffs and her sons illegally trespassed and occupied the verandah of the suit house. Accordingly, they prayed for the dismissal of the suit.