Defendant not establishing that the agreement was only a loan transaction.

M.CHOCKALINGAM, J.

The defendant and his legal representatives are the appellants herein.

2. This appeal has arisen from the judgment and decree made by the learned Subordinate Judge, Coimbatore granting a decree in favour of the first respondent/plaintiff.

3. The first respondent/plaintiff has filed a suit for specific performance with the following averments:

The suit property belonged to the defendant. The defendant entered into a written agreement with the plaintiff on 22.5.1978 agreeing to convey the suit property to the plaintiff for a consideration of Rs.40,000/-. A sum of Rs.25,000/- was received by the defendant as advance, and he acknowledged its receipt in the agreement. On the date of agreement, the defendant received a sum of Rs.10,000/- from the plaintiff as further advance. The balance of Rs.5,000/- was to be paid within six months from the date of agreement. The plaintiff was ready and willing to pay Rs.5,000/-, and when he tendered the same in person on several occasions, the defendant was evading to receive the same. He issued a notice to the defendant on 30.10.78. The said notice has been returned unserved. Hence, the plaintiff was constrained to file the suit.

4. The suit was contested by the defendant by filing a written statement with the following averments:

The alleged agreement and the alleged payment of advance are all false. The defendant and the plaintiff were friends. The defendant was doing business at Coimbatore from 1986 as forest contractor. The defendant has sold 15 cents of land to the plaintiff. Due to financial crisis, the defendant approached the plaintiff and received Rs.15,000/- as loan. The defendant executed a promissory note on 31.12.1977. On 21.1.1978, the plaintiff gave Rs.43,075/- only to the defendant and obtained a pronote for Rs.50,000/- from the defendant. The plaintiff has also obtained an agreement from him in respect of the sale of 12.25 acres in S.No.224, 216/2, 217/1 and 233 of Thekkampatti Village in favour of Chitharanjan. The plaintiff has also obtained his signatures in blank papers. Since the defendant was in need of money for paying kist, he approached the plaintiff and asked for a loan. The plaintiff after deducting Rs.3,462.50, gave Rs.21,531.50 to the defendant and obtained a pronote for Rs.25,000/-. He also obtained a receipt from him for Rs.15,000/- in the name of Chitharanjan. When the defendant was facing problems in his business, he required money, and hence, he approached the plaintiff. The plaintiff told the defendant that he should sell his house property at Karamadai Road, Mettupalayam. The defendant handed over the original title deeds in respect of the said property to the plaintiff for perusal. On 22.5.1978, the plaintiff gave a cheque for Rs.20,000/- to the defendant. The plaintiff obtained a pronote dated 25.5.78 from him for Rs.50,000/-. The plaintiff also obtained a receipt from him for Rs.35,000/-. For the due repayment of the said amounts, the plaintiff obtained an agreement from him for the sale of the suit property for Rs.40,000/- and registered the same. The said agreement was made by the plaintiff on his own. The defendant has not given his consent to the contents in the agreement. Thereafter, the defendant paid Rs.1,375/- to the plaintiff on 27.6.1978 and obtained a receipt therefor. Taking advantage of the circumstances faced by the defendant, the plaintiff forged documents, and hence, the agreement did not bind the plaintiff. The defendant did not execute any agreement agreeing to sell his property. The plaintiff was not entitled to get a decree for specific performance. Hence, the suit was to be dismissed.

5. The trial Court framed the necessary issues and tried the suit. After hearing the rival submissions and considering the evidence, both oral and documentary, the learned Subordinate Judge found that the plaintiff was entitled to the reliefs asked for and accordingly granted a decree for specific performance in favour of the first