The final decision of the Lower Appellate Court holding that the plaintiff is not entitled for specific performance decree as against the first respondent/third defendant is absolutely correct in view of the fact that there is inconsistencies in the pleadings and the evidence adduced by the plaintiff contradicts his pleadings and there is no cordial relationship between the first respondent/ third defendant and the second respondent/first defendant and therefore, the second respondent/first defendant could never had acted as a guardian for the minor /third defendant.

JUDGMENT :

ABDUL QUDDHOSE, J.

Prayer: Second Appeal filed under Section 100 C.P.C. against the judgment and decree of the Principal District Judge at Erode in A.S. No. 45 of 2006 dated 04.12.2006 modifying the decree and Judgment of the Ist Additional Subordinate Judge, Erode in O.S. No. 482 of 1998 dated 16.07.2004.

1. This second appeal has been filed challenging the Judgment and decree dated 04.12.2006 passed by the learned Principal District Judge, Erode in A.S. No. 45 of 2006 modifying the judgment and decree dated 16.07.2004 passed by the learned First Additional Subordinate Judge, Erode in O.S. No. 482 of 1998.

2. This Court had admitted this second appeal on 16.07.2007 on the following substantial question of law:

“Whether the finding of the Lower Appellate Court that the agreement of sale entered into was not for the benefit of the third defendant -minor and the same is not binding upon her, is erroneous and contrary to the evidence available on record.”

3. Brief facts leading to the filing of this appeal:

The Appellants are the legal representatives of the plaintiff in the suit O.S. No. 482 of 1998 filed against the respondents who are the defendants seeking specific performance of an agreement of sale dated 22.05.1998 entered into between the plaintiff and the defendants 1 to 3.

4. For the purpose of convenience, the parties are described as per their ranking before the Trial Court.

5. The plaintiff alleged that the defendants agreed to sell the suit schedule properties in his favour under an agreement for sale dated 22.05.1998. As seen from the plaint, it is the case of the plaintiff that he has paid an advance of Rs. 60,000/- on the date of agreement and Rs. 40,000/- thereafter, totally amounting to Rs. 1,00,000/- out of the total sale consideration of Rs. 2,34,600/-. It is also pleaded in the plaint that the defendants 2 and 3 are unmarried daughters of the first defendant and that the first defendant has executed the sale agreement in favour of the plaintiff for himself and on behalf of his minor daughter, the third defendant, along with the second defendant. As seen from the plaint, it is his case that the suit schedule properties are owned only by the first defendant and the defendants 2 and 3 have been added as parties only by way of abundant caution. It is also the case of the plaintiff that the defendants 1 to 3 have illegally sold the suit schedule properties to the fourth defendant on 22.06.1998, despite the existence of prior sale agreement dated 22.05.1998 in favour of the plaintiff. It is also his case that he was always ready and willing to perform his part of the sale agreement dated 22.05.1998. But it is his case that since the defendants 1 to 3 failed to execute the sale deed, he was constrained to file a suit for specific performance.

6. However, it is the case of the first defendant as seen from his written statement that there was no sale agreement with the plaintiff. According to the first defendant, the attestor to the alleged sale agreement had lent money to the first defendant and as a security for the same, the first defendant has signed in blank papers which were misused by the plaintiff.

7. The third defendant who was a minor at the time of execution of the sale agreement by the first defendant in favour of the plaintiff in her written statement has denied that the first defendant has executed the sale agreement on her behalf with the plaintiff. The sale of suit schedule properties by the first defendant in favour of the fourth defendant on 22.06.1998 has also been denied by the third defendant. It is her case that the first defendant has fallen into bad company and become an addict to all vices like women, wine and cards and that he was wasting the entire family income for the said illegal and immoral purposes. It is the case of the third defendant, when the first defendant was questioned about his immoral activities, he drove away the third defendant along with her mother from their home and the t