IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, J.
N. Parameshwari & Ors. - Appellants
Versus
D. Subramanian - Respondent
SA No. 295 of 2017 & CMP No. 6928 of 2017
Decided On : 24-04-2017
Transfer of Property Act – Section 17 - Indian Contract Act – Section 29 - Hindu Succession Act – Section 14 - Sale agreement - Suit property - Permanent injunction - Relief sought in for has been granted - Specific performance - Permanent injunction - respondent herein filed a suit in OS. on file of Court of Subordinate Judge against appellants herein praying for the specific performance of the Agreement of Sale and other consequential relief or in the alternate, to direct the defendants to pay a sum of amount with subsequent interest till date of payment and also for permanent injunction, restraining the defendants or their agents, men or servants from alienating or encumbering the property – Held, Lower Appellate Court reversed the said findings rendered by the Trial Court and allowed the appeal filed by the respondent/plaintiff and granted the decree as prayed for. The findings rendered by the Courts below cannot said to be perverse or without application of mind to the evidence made available - There are no substantial questions of law arise for consideration in the Second Appeal and whatever points urged by the appellants/defendants have been answered by the Courts below - Second Appeal is dismissed
The defendants who lost before the Courts below are the appellants herein.
2. The facts leading to the filing of this Second Appeal, briefly narrated, are as follows:-
[a] The respondent herein filed a suit in OS.No.168/2013 on the file of the Court of Subordinate Judge, Perundurai, Erode District, against the appellants herein praying for the specific performance of the Agreement of Sale dated 05.11.2012 (Ex.A5) and other consequential relief or in the alternate, to direct the defendants to pay a sum of Rs.2,34,300/- with subsequent interest on Rs.2,00,000/- till the date of payment and also for permanent injunction, restraining the defendants or their agents, men or servants from alienating or encumbering the property.
[b] The respondent/plaintiff would further aver among other things that the suit property was originally belong to one P. Palanisamy-father of the appellants herein/defendants and on 05.11.2012, he entered into a written Agreement of Sale and executed the Sale Agreement in his own handwriting in respect of the suit property and also handed over the possession of suit property as well as the original Sale Deed dated 17.08.1961(Ex.A6).
[c] The terms of the agreement are that, the sale consideration was fixed at Rs.4,62,000/- and out of the same, a sum of Rs.2,00,000/- was paid by way of advance as a part of sale consideration and the remaining balance of Rs.2,62,000/- is to be paid by the respondent/plaintiff to [late] Palanisamy and to obtain the registered Sale Deed in his favour within the period of 90 days from the date of agreement.
[d] The respondent/plaintiff would further aver that Palanisamy passed away on 06.01.2013 and as a consequence, the plaintiff could not obtain the sale deed within the stipulated time and in spite of the request made to the legal heirs of [late] Palanisamy-defendants, they did not accede to the said request and in this regard, the plaintiff has also sent a Lawyer's Notice dated 03.09.2013 (Ex.A7), for which the appellants/defendants sent the response dated 19.09.2013 (Ex.A9), making false and untenable allegations. The plaintiff would plead that though he is ready and willing to perform his part of obligation, the legal representatives of [late] Palanisamy namely the appellants/defendants did not come forward to fulfill their part of obligation and hence, filed the suit.
[e] The defendants filed the written statement denying the allegations and would aver that the suit agreement is not a legally valid one and not duly stamped and is an unilateral one and therefore, no relief can be granted under the guise of the said agreement. It is further contended by the defendants that as per Sale Agreement, 77 cents of land were agreed to be conveyed and the said property is the subject matter of sale Deed dated 24.02.2012 (Ex.A1) executed by their father-[late] Palanisamy in favour of plaintiff and therefore, in respect of the very same property, another Agreement of Sale dated 05.11.2012 cannot be executed. It is also contended by the defendants that their father, namely, [late] Palanisamy, has no right to convey the ancestral and joint family properties, in which they are having share, in favour of respondent/plaintiff and prays for dismissal of the suit.
[f] The Trial Court on a consideration of pleadings, has framed the following issues:-
(a) Whether the sale agreement produced by the plaintiff is true, genuine, valid and enforceable?
(b) Whether the plaintiff was ready and willing to perform his part of contract as recognized by law?
(c) Whether the plaintiff is entitled to get the relief of specific performance of contract?
(d) Whether the plaintiff is entitled to get alternative relief?
(e) To what other relief, the parties are entitled to?
[g] During the course of trial, the plaintiff examined himself as P.W.1 and also examined one of the attestors as P.W.2 and marked Exs.A1 to A10. The 2nd defendant examined himself as DW1 and marked Exs.B1 to B3.
[h] The Trial Court, on a considerat
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