IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.SATHISH KUMAR, J.
T.Vasantha and others – Appellants
Versus
A. Jayaseelan and others – Respondents
Appeal Suit No. 571 of 2010 and C.M.P.Nos.1 and 2 of 2010
Decided On : 02-05-2017
Suit for specific performance - Sake of convenience - First defendant, mother of other defendant has entered into an agreement with the plaintiffs for sale of suit property for a total sale consideration of 12.00 lakhs. On the date of the agreement, the defendants have received towards advance sale consideration - Second and fourth defendants also signed in the agreement as witnesses and consented for sale of the property - Third defendant was not available on date of agreement, the other defendants assured that they will obtain her signature Third defendant also has given her consent– Held, Absolutely there is no dispute with regard to the propositions laid down in the judgment cited by the learned Senior Counsel for respondents. Whereas the facts in this case is entirely different - Learned trial Judge without appreciating the facts, has granted a decree for specific performance. Even in the judgment there is no direction with regard to the payment of balance sale consideration. Admittedly, the suit property is only land, and it is the only property of the defendants - All these facts cannot be ignored altogether. Hence, judgment and decree of the learned trial Court is liable to be interfered with - Appeal stands allowed
Aggrieved over the decree and judgment of the learned trial Court, decreeing the suit filed for specific performance, the present appeal came to be filed by the Defendants. For the sake of convenience, the parties are arrayed as per their own ranking before the trial Court.
2. Brief facts of the plaintiff's case is as follows:-
The first defendant, the mother of the other defendants, has entered into an agreement with the plaintiffs on 01.12.2005 for sale of the suit property for a total sale consideration of 12.00 lakhs. On the date of the agreement, the defendants have received Rs.40,000/- towards advance sale consideration. The second and fourth defendants also signed in the agreement as witnesses and consented for the sale of the property. As the third defendant was not available on the date of agreement, the other defendants assured that they will obtain her signature. The third defendant also has given her consent on 15.12.2005. Thereafter, the first defendant has also settled the property in favour of the fourth defendant on 15.12.2005 and handed over the settlement deed to the plaintiffs. In the settlement deed the second and third defendants have signed as the witnesses. Thereafter, the defendants changed their intention to sell the property and issued a legal notice on 25.01.2006 to the plaintiffs with false allegations, which was suitably replied by the plaintiffs. Thereafter, the third defendant has filed a suit in O.S.No.24 of 2006 on the file of the District Munsif Court, Tambaram against the plaintiffs and defendants 1, 2 and 4 for not to alienate the property. In the above suit the third defendant has also admitted the sale agreement. Similarly, the first, second and fourth defendants have also filed a suit in O.S.No.77 of 2006 against the plaintiffs for a direction to the plaintiffs to return the settlement deed and sale agreement. The plaintiffs also made several requests with the defendants through personally and also through mediation for execution of the sale deed after receiving the remaining sale consideration. But the defendants did not come forward to execute the sale deed. Hence the plaintiffs issued a legal notice to the defendants on 19.02.2006 calling upon them to execute the sale deed in favour of this plaintiffs. But the defendants refused to do so through the reply dated 23.02.2006. Hence, the suit.
3. It is the case of the defendants 1, 2 and 4 is that the suit property was originally owned by one Thangavelu, husband of the first defendant and father of the other defendants. After his death the property was devolved upon them and they are in joint possession and enjoyment of the same. As the defendants 2 to 4 were minors at that time of death of Thangavelu, the property tax and other records stand in the name of the first defendant as she was the natural guardian for them. Defendants were in need of some amount to meet out their urgent requirements for settling some hand loans and also for treatment of the fourth defendant. In the month of November-December 2005 the plaintiffs were introduced by one Harivaharan and according to his advice for borrowing loan, the defendants 1, 2 and 4 signed documents prepared by the plaintiffs which was only for the purpose of security. The defendants signed the documents without knowing the contents but on the presumption that it is only the document for repayment of the borrowed amount. Though the borrowed amount is Rs.50,000/-, the plaintiffs were given only Rs.40,000/- after deducting Rs.10,000/- towards interest for 10 months from December 2005 to September 2006. A settlement deed was executed by the first defendant in favour of the fourth defendant as per the advice of the plaintiffs for safety and security. The alleged agreement is not intended for sale. It is only for the purpose of money transaction. In the meanwhile the defendants were threatened by the plaintiffs to execute sale deed immediately. The defendants issued notice dated 25.01.2006 e
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