JUDGMENT.-The plaintiff in O.S. No. 112 of 1972 in the Court of the Subordinate Judge of Udamalpet is the appellant. He filed a suit for recovery of Rs. 10,175 with interest and costs. The suit property belonged to defendants 1 to 3, who are brothers and also their mother Muthammal and their brother Chinnappa Goundar. The extent of the property is 14 acres and 9½ cents. The plaintiff purchased Chinnappa Goundar’s 1/5th share. Muthammal, the mother of the first three defendants, executed a settlement deed in favour of her daughter-in-law, the fourth defendant. Thus, the four defendants had 4/5th share in the said property. There was an agreement between the plaintiff and the four defendants on 28th April, 1971 marked as Exhibit B-2 in the case regarding the sale of that 4|5th share in the said property. The consideration for the sale was Rs. 58,000. Time for completing the transaction was three months. A sum of Rs. 10,000 was paid as advance on 24th May, 1971. The agreement contemplated delivery of possession to the plaintiff on his payment of Rs. 10,000 as advance. The balance was payable before the Sub-Registrar. The agreement provided that in case the plaintiff did not pay the balance and have the sale deed registered, he would lose the advance of Rs. 10,000. The defendants could take over possession of the property and harvest the crops. If the defendants failed to execute the sale deed, then the plaintiff could take proceedings in Court. As damages the plaintiff could adjust a sum of Rs. 10,000 and pay the balance of Rs. 38,000 in Court. In the receipt that was given on 24th May, 1971 marked as Exhibit A-1 it was stated that the defendants would discharge their liabilities and that in case the sum of Rs. 10,000 was not sufficient to discharge all the debts, then they would render an account to the plaintiff and receive the amount 15 days prior to the expiry of the period of three months and receive the balance before the Sub-Registrar as provided in "the agreement. The period of three months would elapse by 27th July, 1971. On 22nd July, 1971 there was a public notice in the newspaper ‘Malai Murasu’ on behalf of one Kunjammal, the sister of the defendants, in which it was stated that the defendants were illegally trying to sell the properties of the father, Muthu Gounder, that the properties belonged to Chellammal and Kunjammal, the daughters of Muthu Goundar and that the defendants had no right to transfer them. The plaintiff alleged that on seeing this notice he sent a telegram calling back the sum of Rs. 10,000. The defendants did not comply with this telegraphic request and sent instead a reply notice through their counsel on ‘9th August, 1971 (Exhibit A-3). There was a reply to it from the plaintiff’s counsel dated 25th August, 1971, under Exhibit A-4 and the suit came to be filed subsequently for the recovery of the sum of Rs. 10,000 with interest.

2. Defendants 1, 3 and 4 were absent and set ex parte. The second defendant alone contested the suit. In brief his defence was that the actual consideration for the sale of the property was Rs. 80,000, that the plaintiff paid Rs. 10,000 on 24th May, 1971, that he agreed to make another payment of Rs. 22,000 within one month and the balance in two months thereafter and that the plaintiff was not in a position to raise necessary funds, so that he set up his (defendant’s) sisters to make this publication so as to claim the refund of the sum of Rs. 10,000. It was contended that the sum of Rs. 10,000 was not returnable to the plaintiff under the terms of the agreement.

3. The learned Subordinate Judge held that the plaintiff committed breach of contract and that even if the defendants were at default, the plaintiff could only file a suit for specific performance and could not get back the sum of Rs. 10,000. The suit was accordingly dismissed and the plaintiff is now in appeal in this Court.

4. Two questions arise in this appeal. The first is whether there was a breach of contract

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