KULLA KONE Vs. GOPAL KONE

JUDGEMENT

(1.) DEFENDANTS 2 to 6 in O. S. No. 132 of 1982 on the file of the Subordinate Judge's Court, tiruvannamalai, are the appellants. The respondent/plaintiff filed the suit for specific performance of an agreement for reconveyance against the legal representatives of one Gopal Kone. The first defendant Ellammal, wife of Gopal kone also died pending suit. The other defendants were recorded as her legal representatives and as already stated they are the appellants in the second appeal.

(2.) THE case of the respondent was that deceased Gopal kone purchased the suit property on 31. 7. 1973 under Ex. A. 4. On the same date under Ex. A. 1 there was an agreement entered into between the respondent and gopal Kone, under which Gopal Kone agreed to reconvey the suit property to the respondent on or before 30. 7. 1978 for a consideration of Rs. 11, 012. 50 and on the same day a sum of Rs. 12. 50 was paid as advance. THE respondent by notice dated 25. 7. 1978 under the original of Ex. A. 2 called upon the legal representatives of Gopal Kone to reconvey the property and as they did not comply with the demand, the suit came to be filed.

(3.) PER contra, the learned Counsel for the respondent/plaintiff submitted that the finding reached by the courts below is based on the documentary and oral evidence and as a question of fact, the courts below have found that the respondent/plaintiff had always been ready and willing to perform his part of the obligations and that the finding is unexceptionable and cannot be interfered with under section 100 of the Code of civil Procedure. The learned Counsel also submitted that different considerations would arise in a case for specific performance of an agreement for reconveyance as opposed to the considerations recognised by courts in suits for specific performance of agreements for sale. The respondent had clearly demonstrated that he had the wherewithal to seek performance and he had complied with the requirements of law in letter and spirit and even conceding that there had been some contradictions between pleading and proof, the same was immaterial. In support of the contention, the learned Counsel for the respondent relied on the judgment of a Division Bench of this Court in Pachaiappan and others v. S. P. Koon Mari, 1996 (II) MLJ 378.