An agreement to execute two sale deeds instead of one, with different schedules and measurements, in favor of the plaintiff and her husband, constitutes a new contract, substituting the original contract.

SRINIVASAN, J.

1. The unsuccessful plaintiff in the trial court is the appellant herein. Pending the appeal, the defendant died and her legal representative has been impleaded after the delay in bringing him on record has been condoned. For the sake of convenience, the parties are referred to in this judgment by their ranking in the trial court.

2. The case of the plaintiff is as follows:— An agreement was entered on 9.7.1979 under Ex. A-1 between the plaintiff and defendant for sale of the property described fully in the plaint schedule for a sum of Rs. 75,000/-. A sum of Rs. 1,000/- was paid by way of advance to the defendant. It was agreed that the balance of consideration was to be received before the Sub Registrar at the time of registration. The agreement was attested by one Chakrapani, brother of defendant, and one Venkatesan, a broker. It was stated in the agreement that documents of title should be handed over to the plaintiff immediately and within fifteen days after scrutiny of the title deeds, a sum of Rs. 10,000/- should be paid by the plaintiff, if she was satisfied with the title. The total time fixed for registration of the document was three months. The plaintiff received a notice dated 17.8.1979 marked Ex. A.9 issued by a third party making a claim under a prior mortgage. The plaintiff, therefore, sent a telegram to the defendant on 1.9.1979 under Ex. B1 to the effect that the agreement was valid and if anything was found wrong the plaintiff would proceed legally against the defendant. We are not able to decipher the purpose of such a telegram at the instance of the plaintiff.

3. The defendant sent a notice on 12.9.1979 under Ex. A2 to the plaintiff informing her that as she had not paid the further advance of Rs. 10,000/- as agreed, she had forfeited the advance already paid and the agreement ceased to be enforceable. A reply was sent to the plaintiff on 16.10.1979 under Ex. A3 asserting that the plaintiff had a right to specifically enforce the contract.

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This extract is taken from Sakku Bai Ammal v. Vedhavalli, (1994) 1 LW 222, at page 224 :

4. The plaintiff filed a suit, O.S. No. 1478/79 on the file of the District Munsif, Poonamallee, on 4.11.1979 for restraining the defendant from making any alienation of the property. The parties entered into a compromise on 30.3.1981 by which it was agreed that the consideration payable under the agreement was to be enhanced by a sum of Rs. 2,500/- and a sum of Rs. 40,000/- should be paid by the plaintiff to the defendant on that date itself. Accordingly, the sum of Rs. 40,000/- was paid and an endorsement was made by the power of Attorney Agent of the defendant on Ex. A1, the suit agreement. It was also agreed that the balance of Rs. 36,500/- was to be paid by the plaintiff on or before 15.6.1981 and that time was the essence of the contract. It was further agreed that the suit for injunction should be withdrawn by the plaintiff. The defendant handed over the documents of title to the plaintiff under the compromise and the terms of the compromise were made subject to the approval of title by the plaintiffs counsel. After scrutinising the documents given to the plaintiff, she demanded some more documents from the defendant under Ex. B5 dated 5.4.1981. Finally, the plaintiff agreed to purchase the property and requested the defendant to get the income-tax clearance certificate. At that stage, the defendant suggested that it was not necessary to get the income-tax clearance certificate, if the sale was executed under two different sale deeds with regard to two different portions of the property. Accordingly, it was agreed that one sale deed should be in the name of the plaintiff and the other sale deed in the name of her husband. Two draft sale deeds were prepared and sent for approval to the defendant, and the same wer