VENKATARANGA AIYAR Vs. CSRAMASAMY AIYAR

JUDGEMENT

(1.) This is a suit for specific performance of a written and registered agreement, dated 26 October, 1917, to sell immoveable property entered into by the 1st and 2nd defendants and their brother, Velusamy Goundan. Defendants 3 and 4, who appeal put forward an anterior oral agreement on 15 October, 1917, to sell the lands to them. The existence of this prior agreement formed the subject of the 2nd issue which the trial Court found against these defendants. The correctness of this finding is the main question argued in appeal. When we are asked to disturb findings of fact based entirely upon oral evidence, we must always feel some hesitation before coming to a different conclusion from that of the Judge who heard and saw the witnesses deposing. This is additionally so, when that course would involve giving credit to witnesses who have been disbelieved in the Court below, and when it involves accepting a story which, judged merely upon probabilities, sounds hard to accept. The story told by D. Ws. 8 and 9 is that they went from Darapuram to Kolinjivadi to ask a creditor to remit penal interest on a mortgage debt due by the brother of D.W. 8 and were accompanied to the creditor's house by the Assistant Karnam of the village, D.W. 6. When passing the 4 defendant's house, the Karnam was called in and they went in too and witnessed the oral agreement to sell the plaint lands and advance of Rs. 100. The date of this transaction is fixed by the endorsement of payment on Ex. VIII A which is October 16th, the difference of one day being accounted for by saying that on October 15 the creditor obstinately refused to make any remission but that he relented on the following day. I think it is probable that October 16 was the real date of these witnesses visit to the money-lender and that the story that they followed Sami Sastri to his bath asking about the remission of interest and that the document was not referred to, nor was any account of interest taken till the next day, was introduced to make the story, that they went on the 15th, credible. The fact that D.W. 6 once owned considerable property, does not in my opinion, enhance the value of his testimony or make the story more credible. If the contracting parties wanted witnesses of their contract and went to the length of calling strangers in for that purpose for fear that one or the other party would go back on the agreement, it would have been just as easy to get the terms reduced to writing. In this ease," there are not even receipts produced for delivery of the title deeds or for payment of the advance said to have been made at the time. The finding of the lower Court upon this issue must, therefore, be confirmed.

(2.) On November 10th, the appellants obtained sale deeds which are Exs. III-B and III-C, knowing at the time as found by the trial Court, that defendants 1 and 2 had agreed to sell their lands to the plaintiff. Their brother, Yelusami, sold his one- third share to the plaintiff for Rs. 3,66610-8 under Ex. E, (i.e.) for one-third of the price agreed upon in Ex. A, the written agreement of 26 October.

(3.) The second point argued in this appeal is that the decree for payment of Rs. 750 as damages cannot stand. Section 19 of the Specific Relief Act provides that if specific performance ought to be granted but is not sufficient to satisfy the justice of the case, compensation for breach of the contract may also be given to the plaintiff. The present is not such an extreme case as to give further relief in addition to the relief of specific performance. The plaintiff will be sufficiently compensated by getting a decree for specific performance together with costs. The direction that defendants should pay Rs. 750 as damages will, therefore, be excluded from the decree.