Unexpected delay in filing suit for specific performance of agreement.

Thangamani, J.

The appellant is the plaintiff before the trial Court. He instituted the suit for specific performance on the basis of Ex.A-1 the agreement dated 16.1.1973 entered with Manicka Naicker the first defendant (since deceased). His case is that he is carrying on joint family business under the name and style of Chelliah Nadar and sons. The first defendant acting for himself and on behalf of his wife and the second defendant (since deceased) entered into an agreement with him under Ex.A-1 for the sale of the premises bearing Door No.4, Kalmandapam Road, Royapuram, Madras for Rs.57,000 on 16.1.1973. So far the first defendant had received Rs.22,000 as advance. As per the agreement the appellant who is in occupation of a portion of the house was authorised to receive rents from the other two tenants in the building. Under the terms of the agreement the balance of the purchase money has to be paid and sale deed registered within 11 months from that date. However, the first defendant collusion with the third defendant first respondent and Chandra Bose one of the sons of the appellant attempted to resils from agreement. Thereupon, the appellant sent the original of Ex.A-3 notice on 4.7.1974. He also caused a publication to be made in ‘Malai Murasu" dated 7.7.1974, as per Ex.A-2. At the instance of the third defendant first respondent, defendants 1 and 2 have conveyed the property in favour of the 4th defendant 2nd respondent under Ex.B-1 dated 11.7.1974. This appellant has per-formed his part of the contract and he is always ready and willing to comply with the terms of the agreement. Ex.B-1 sale deed cannot confer any right, title or interest in derogation of the rights of the appellant under Ex.A-1. The 3rd respondent is the L.R. of deceased second defendant.

2. Defendants 1 and 2 resisted the action pleading that they never entered into any agreement of sale with the appellant. They did not hand over possession of the suit house to the appellant at any time. Their agreement of sale was only with Chandra Bose, the son of the appellant. Since the latter could not complete the transaction within the stipulated time, he expressed his inability to go through the sale and released his rights under Ex.B-7 dated 25.3.1974. He requested for the return of the advance amount after selling the suit property to third parties and surrendered possession. Thereupon, these defendants conveyed the property in favour of the fourth defendant under Ex.B-1 sale deed dated 11.7.1974 and returned the advance amount paid by the Chandra Bose on the same day. Ex.B-8 is a receipt passed by Chandra Bose. They also contended that the original agreement entered into between them and the said Chandra Bose differs from their copy of the agreement. It has been forged by the appellant by adding words suitable to him and the same appears to have been filed in criminal proceedings instituted against him and others for forgery. Obviously for this reason the appellant has instituted the suit with a photostat copy of the agreement. The fourth defendant claims that only after satisfying himself of the title deeds and the letter written by Chandra Bose, he got the property conveyed in his favour.

3. The trial court held that Ex.A-1 agreement could have been executed only in favour of Chandra Bose in his individual capacity and he has later on given it up and that the appellant had no funds to complete the sale and so other questions did not arise for consideration. Accordingly, it dismissed the suit with costs of the defendants.

4. The appellant states in his evidence that Ex.A-1 sent for from the criminal court and marked is the agreement entered into between himself and the first defendant. He has based his claim for specific performance only on this document. This purports to be an agreement dated 16.1.1973 executed by first defendant Manicka Naicker in favour of Chandra Bose representing Chelliah Nadar and Sons. The defendants assailed this agreeme