Neelavathi Ammal vs Salvasundaram Naicker and Others

Swamikkannu, J.—The Plaintiff-Appellant filed the suit before the trial Court for specific performance and permanent injunction. The suit was dismissed. The decree and judgment of the trial Court, were, on appeal, confirmed by the appellate Court. In the plaint it is inter alia stated that Defendants 1 and 2 are the absolute owners of the suit properties and that they entered into an agreement of sale with the Plaintiff on 27th Feb., 1982 for sale of the suit properties for consideration of Rs. 7,740. The written agreement of sale was also filed into Court. On the date of the agreement, a sum of Rs. 290 had been paid and it was also endorsed in the agreement. The time fixed for execution of the sale deed was six months, Defendants 3 to 6 recording to the Plaintiff-Appellant gave out that they were going to purchase the properties for an enhanced price and the Plaintiff understood it and rushed to the Sub-Register''s office and presented an objection petition. The Sub Registrar endorsed on the petition stating that the Plaintiff could approach a Court of law.

Written statements were filed by Defendants 3 to 6 as well as Defendants 7 and 8. As many as eleven issues were framed by the trial Court. On behalf of the Plaintiff, the Plaintiff examined herself as PW1 and three other witnesses and filed Exhibits A1 to A4. The Defendants examined DWs. 1 to 7 and filed Exhibits B1 to B18 in support of their case. On a consideration of the above evidence, the trial Court held that there was no ground for granting a decree for specific performance and dismissed the suit. The aggrieved Plaintiff preferred an appeal and the appellate Court framed the following points for consideration:

Whether the agreement of sale executed by Defendants 1 and 2 in favour of the Plaintiff on 27th Feb., 1982 is true, valid and binding?

Whether the agreement of sale executed by Defendants 1 and 2 in favour of Defendants 3 to 6 on 12th Dec. 1981 is true and valid? and

Whether the Defendants 3 to 8 are bonafide purchasers for value without notice?

Under Point 1, the appellate Court held that Exhibit Al agreement is true, but void and unenforceable for want of passing of consideration of the advance consideration to the extent of Rs. 1,010. Under points 2 and 3 the appellate Court came to the conclusion that the agreement of sale executed by Defendants 1 and 2 in favour of Defendants are bona fide purchasers for value without notice. In the result, the appeal was dismissed with costs, confirming the judgment and decree of the trial court.

Mr. S. Meenakshisundaram, learned Counsel for the Plaintiff Appellant, inter alia contends that both the courts below have not properly appreciated the evidence; especially the contents of Exhibits A1 and A2 were ignored and proper approach was not made by both the Courts below in appreciating the contents of the said documents. It is relevant to note in this connection that Exhibit A2 endorsement was made on Exhibit A.1 itself. A careful consideration of the contents of Exhibit Al shows that the amount of Rs. 1,010 would be given by the Plaintiff to the Defendants on 29th Feb., 1982 by pledging her jewels. The endorsement Exhibit A2 is to the effect that on 27th Feb., 1982 a sum of Rs. 990 had been given to the Defendants and the balance of Rs. 1010 would be paid later and thereafter an endorsement would be made on Ex.A1. A careful reading of these exhibits clearly shows that the sum of Rs, 1010 which ought to have been paid as per stipulation in Exhibit Al had not been paid in fact and that is the reason why both the Courts have held that Exhibit A1 is not supported by consideration. The conclusion arrived at by both the Courts below with respect of Exhibit A1 agreement is correct and in accordance with law. So far as the document which was held to be genuine and valid and enforceable in law by both the Courts is concerned, this Court finds that the reasons offered by both the Courts are correct in upholding the validity of that document that had been executed by Defendants 3 to 8 in favour of the owners of the property.

It is represented that the property in question had now been sold in favour of all the vendees for Rs. 14,000 odd, whereas the agreement which is now sought to be specifically enforced is only for a value of Rs. 7,000 odd. In other words the vendors have received as price, nearly double the amount stipulated in Exhibit Al agreement, for having sold the property to Defendants 3 to 8. Under these circumstances, even on the basis of equity, we find that the Plaintiff Appellant cannot have any decree for specific performance. Therefore, this Court does not find any question of law, much less a substantial question, for determination in the second appeal. The second appeal is therefore dismissed at the state of admission.