Refusal of relief of specific performance.

THANGAMANI, J.

Appeal against the judgement and decree of learned Subordinate Judge of Salem in O.S. No. 124 of 1981 on his file.

2. The appellants are defendants 4 and 5 in the trial Court. Respondents-plaintiffs instituted the suit for specific performance against the appellants and three others alleging that on 27-8-1980 defendants 1 to 3 entered into Ex. A1 sale agreement with them undertaking to sell the suit properties for Rs. 52, 500/-. they received a portion of the sale price of Rs. 20, 000/- as advance and agreed to receive the balance of Rs. 32, 500/- within a period of 51/2 months from that date and to execute the sale deed in favour of the plaintiffs. On 16-11-1980 which corresponds the 1st of Tamil month Karthigai the plaintiffs were put in possession of the properties as agreed and since then they are in actual enjoyment of them. Appellants were aware of Ex.A-1 agreement as well as handing over possession of the properties to the plaintiffs by defendants 1 to

3. Since defendants 1 to 3 were postponing the execution of the sale deed, the plaintiffs convened panchayat thrice. The last panchayat took place at the house of Village Munsiff of Konnayar on 1-1-1981 in which defendants 1 to 3 undertook to execute the conveyance on 7-1-1981. Appellants were also present along with defendants 1 to 3 in that panchayat. However, defendants l to 3 and the appellants have colluded together and crated. Ex.B-2 sale agreement dated S. 3, 1980 in favour of the appellants on 3-1-1981 by antedating the same. Ex.B-1 sale deed dated 2-1-1981 was also executed by defendants 1 to 3 in favour of the appellants in respect of the suit properties fraudulently in order to deprive the plaintiffs of their right. The recitals as to consideration, possession are all false and fabricated so as to get over the right of the plaintiffs under Ex. A-1 agreement dated 27-1-1980. Appellants cannot derive any right, title or interest in the suit properties by virtue of Ex.B-1 sale deed. Appellants are not bona fide transferees for value without notice of the earlier agreement for sale in favour of the plaintiffs and their possession.

3. Defendants 1 to 3 remained ex parte in the suit.

.4. The appellants resisted the suit denying that Ex.A-1 came into existence on 27-8-1980 and that the plaintiffs were ever in actual possession of the properties and that there was any mediation in this connection. They pleaded that they lawfully entered into Ex.B-2 agreement with defendants 1 to 3 on 5-3-1980 and in pursuance of the same defendants 1 to 3 conveyed the suit properties in favour of them under two sale deeds Ex.B-1 dated 2-1-1981 and Ex.B-9 dated 13-1-1981. They were also put in actual possession of the suit properties. Till then their vendors alone were in enjoyment of the properties and Ex.B-2 agreement is not an antedated one.

5. Holding that Ex.A-1 is a genuine agreement and there is nothing to suspect that it was created later on by antedating the instrument, that appellants were aware of the existence of Ex.A-1 agreement, that possession was delivered to the plaintiffs as per Ex.A-9 delivery receipt dated 16-11-1980, that Ex.B-2 sale agreement was created by antedating the same and that the plaintiffs had come to Court with clean hands, the trial Court decreed the suit with costs for specific performance.

6. The endeavour of Mr. G. Subramanian, learned senior counsel for the appellants was mainly to place before the Court the suspicious circumstances attendant on the transaction and to demonstrate that Ex.A-1 sale agreement dated 27-8-1980 was created subsequent to the coming into existence of Ex.B-2 agreement on 5-3-1980. In other words, his argument was that Ex.B-2 agreement preceded Ex.-1 agreement. The first submission in this connection relates to delivery of possession of the property. It is the evidence of the first plaintiff as P.W. 1 that on 27-8-1980 defendants 1 to 3 agreed to convey the suit items to them for Rs. 52, 500/-a