PALANISAMY Vs. S KANDASAMY

JUDGEMENT

(1.) This Second Appeal has been filed by defendants 1, 3 and 4 against the Judgment and decree dated 21.04.2014 made in A.S.No.29 of 2013 on the file of Principal District Judge, Karur, confirming the Judgment and Decree dated 22.06.2012 in O.S.No.341 of 2010 on the fie of the Principal Sub Court, Karur.

(2.) The case of the plaintiff is that the suit property comprised in A.P.S No.91, Ac.1.03 originally belongs to the first defendant and his brother Seiyyappa Gounder. The second defendant is the daughter of Seiyyappa Gounder. She purchased half a share owned by her father. The defendants 3 and 4 are son and daughter of the first defendant. Hence, the first defendant and the defendants 3 and 4 are jointly entitled to the remaining half share. The first defendant, on his behalf and on behalf of the defendants 3 and 4 and the second defendant had entered into a sale agreement with the plaintiff on 08.2006 agreeing to sell the suit property for a sum of Rs.11,25,000/-. A sum of Rs.1,00,000/- was paid as an advance. As per the terms of sale agreement, the sale should be completed within 40 days from the date of sale agreement. The sale agreement was reduced into writing with the nomenclature as Token Advance Receipt. It is further stated that the plaintiff was always ready and willing to perform his part of contract. On the other hand, the defendants have not come forward to perform their part of contract. The plaintiff got information that attempts were made to encumber the suit property by the defendants and issued paper publication on 05.09.2006. In the mean time, on 04.09.2006, the plaintiff demanded the defendants to comply with the terms of sale agreement by tendering money. But, they were not ready and willing to perform their legal obligations. Therefore, the plaintiff issued a notice on 06.09.2006 to the defendants 1 and 2 calling upon them to be present at Chinnadharapuram Sub Registrar Office for execution of sale deed on 11.09.2006. But, they did not turn up. The plaintiff has deposited the balance of sale price in Union Bank of India, K.Paramathi Branch. On 109.2006, the defendants issued a false reply for the notice issued by the plaintiff. Therefore, the plaintiff filed the suit for the relief of specific performance and for alternative relief of refund of advance amount with interest at 12% p.a. from the date of plaint till the date of realization. During the pendency of the suit, the second defendant has executed two sale deeds dated 17.08.2009, one in favour of the plaintiff and the other one in favour of his wife with regard to her undivided half share in the suit property for a valuable consideration, after deducting her proportionate share of advance amount received by her, pursuant to the sale agreement dated 008.2006 which was named as token advance receipt. In respect of remaining extent, the defendants 1, 3 and 4 are liable to execute the sale deed. Hence, the suit.

(3.) The first defendant had filed the written statement which is adopted by the second defendant and the defendants 3 and 4. In the written statement, the defendants denied the entire plaint allegations. The defendants claimed that the defendants 1 and 2 never executed any sale agreement on 02.08.2006. It is further stated that only negotiation had taken place and no sale price was fixed as Rs.10,25,000/- . The property will fetch the value of more than one crore. The token advance of Rs.1,00,000/- was paid at the insistence of brokers. The defendants 1 and 2 were not willing to sell the property for a meager price. The alleged contract is not valid and concluded one. Hence, the plaintiff cannot insist the defendants to execute the sale deed. In any event, the claim of return of advance money is barred by limitation. It is further stated that the first defendant alone is not the exclusive owner of the property. His son and daughter, who are the defendants 3 and 4, are also entitled to the suit property. The plaintiff's claim that the first defendant entered into sale agreement on behalf of his son and daughter is also denied and hence, the plaintiff is not entitled to any charge over the suit property and hence prays for dismissal of the suit.