SAMBAYEE AMMAL Vs. POOMALAI

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree of the learned second Additional District Judge, Salem, dated 17.8.1987 in A.S.No.39 of 1987, reversing the judgment and decree of the trial court in O.S.No.418 of 1983 dated 18.2.1987.

(2.) THE defendants are the appellants, THE short facts which are necessary for the purpose of this appeal are: THE respondents/ plaintiffs instituted the suit for specific performance against the appellants/ defendants that they orally agreed to sell the suit property for a sum of Rs.20,000 and received an advance of Rs.5,000. THE appellants agreed to discharge the mortgage debt due to the Agricultural Co-operative Society, Gajjalnaickenpatti and also to clear the arrears payable to the Electricity Department for service connection No.174 out of the advance amount. On 16.6.1983, appellants 1 and 2 for themselves and the second appellant as the guardian for the minor appellants, executed the sale deed Ex.A-1 and delivered possession of the suit property to the respondents on the same day. As the mortgage debt and the amount payable to the Electricity Department were found to be not paid by the appellants, the sale deed could not be presented for registration. THE respondents/ plaintiffs are always ready and willing to perform their part of the contract and the appellants are postponing to perform their part of the contract. THE respondents have deposited the balance amount of Rs.15,000 in the Indian Overseas Bank in the Savings Bank Account No.14950. THE first appellant/ first defendant filed a written statement adopted by appellants 2 to 4. It was contended therein that the respondents/ plaintiffs agreed to purchase the property for a sum of Rs.42,000 and the allegations that they agreed to sell the same for Rs.20,000 is not true. To avoid stamp duty the respondents got the sale deed Ex.A-1 executed for a sum of Rs.20,000 and they agreed to pay the balance of Rs.35,000. It is true the appellants received a sum of Rs.5,000 as the advance. Since the balance of Rs.35,000 was not paid and disputes arose between the parties about the same, Ex.A-1 was not registered. THE allegation that possession of the property was delivered on the date of Ex.B-1 is not true. THE respondents/ plaintiffs were never ready and willing to pay the balance of Rs.35,000 and perform their part of the contract. THE respondents asked the appellants to return back the advance amount of Rs.5,000 and told them that they would get the sale deed cancelled and get refund of the amount paid for the stamp. THE seventh defendant filed a separate written statement adopted by the fifth defendant that the well in Survey No.125/4 is a common well, in which he and his brother Pachamuthu, the fifth respondent are entitled to one third share. Defendants 1 and 2 entitled to one third share. Palaniappan and his five brothers are entitled to the remaining one third share. THE electric motor and pumpset exclusively belong to the seventh defendant and his brother, in which the other sharers have no right. THE electric motor fixed in the well fell into disrepair and it was removed for effecting repairs. As the suit was filed for specific performance, the motor was not fixed after the repairs and the suit is not maintainable.

(3.) THE next contention that had been put forward on behalf of the appellants is after the sale deed Ex.A-1 had been executed, the respondents/ plaintiffs ought to have presented the same for compulsory registration and the defendants/appellants were unwilling to register it and without resorting to the above, approaching the civil court directly for the relief of specific performance is illegal and the learned First Appellate Judge is not correct in entertaining the suit and reversing the finding of the learned trial Judge.