Point of Law - Equitable relief of specific performance is granted based on readiness and willingness, time agreed to complete contract, sale price fixed and amount paid as advance, transfer of possession as part performance and other covenants in agreement. The intention of parties and their conduct are the factors which guide court to decide which side equity lie.

JUDGMENT :-

(Prayer: First Appeal is filed under Section 96 Civil Procedure Code, against the judgment and decree in O.S.No.64 of 2014 on the file of the Sessions (Fast Track Mahila) Court, Namakkal, dated 29.07.2020.)

1. The Appeal is filed by the defendants Nos.1, 3, 4 and 5 against the judgment and decree passed in the suit for specific performance of the agreement to sale and declaration the sale deed in favour of 5th defendant, registered subsequent to the suit sale agreement as null and void.

2. The facts leading to the Appeal:

The suit schedule property is 1.50 acres out of 3.00 acres undivided share of one Ponnusamy. On 31.03.2012 he agreed to sell his share to one Malathi for a price of Rs.9,00,000/- and received advance of Rs.2,25,000/-. Agreement for sale was entered between Ponnusamy and Malathi with covenant that the balance to be paid in part or in full by 30.09.2012. On such payment, the vendor shall execute the sale deed in favour of the purchaser or her nominee. In case, the vendor fails to execute the sale deed, the purchaser is entitled to enforce the contract through Court after depositing the balance sale consideration. If the purchaser fail to pay the balance sale consideration within the time fixed, he will forfeit the advance money. In the sale agreement the purchaser. Signed and the vendor affixed his LTI. One of the witness to the agreement is the son of the vendor. He both signed and affixed his left thumb impression and right thumb impression. The other witness Muthusamy affixed his signature and Left thumb impression. The sale agreement was written by Nandakumar the husband of the plaintiff. Before the time fixed for execution of the sale deed, the vendor Ponnusamy died intestate on 19.06.2012.

3. Malathi filed suit against the wife, sons and daughters of Late Ponnusamy and one Kumaran, alleging that, she was ready and willing to pay the balance sale consideration and get the sale deed registered. Before she could get the deed registered Ponnusamy fell sick and died. So she met the legal heirs of Ponnusamy and expressed her readiness and willingness to pay the balance sale consideration and get the sale deed registered. Initially, they took time saying they want to get the dead certificate and legal heir certificate for patta transfer. After the transfer of patta in their name, they will execute the sale deed. Believing their words she waited. Later realising the legal heirs of Ponnusamy are causing delay without reason, she caused notice on 03.04.2014 calling upon them to receive the balance sale consideration and execute the sale deed. The legal heirs of Ponnusamy did not reply. Suspecting foul play, she applied for encumbrance certificate, she found that the wife and children of Ponnusamy (defendants 1 to 4) had registered a sale deed on 11.04.2014 in favour of one Kumaran (5th defendant), with ulterior intention to defeat the lawful right of the agreement holder. The said transaction is not genuine. The 5th defendant is not a bonafide purchaser for valuable consideration. Therefore, the said sale deed dated 11.04.2014 has to be declared as illegal and void. The 5th defendant must be restrained from creating any encumbrance upon the suit property. Court shall issue direction to the defendants 1 to 4, to receive the balance sale consideration of Rs.6,75,000/- and execute the sale deed as per the agreement.

4. In the written statement jointly filed by defendants Nos.1, 3 and 4 they denied the execution of sale agreement by Ponnusamy and his intention to sell the property. The 3rd defendant/Suresh to buy a JCB machine along with his friend Mohammed Ishan, approached the husband of the plaintiff for financial assistance. The 3rd defendant and his father Ponnusamy borrowed Rs.2,25,000/- from the plaintiff’s husband. As security for the said loan, signatures and thumb impressions were obtained from Ponnusamy and the 3rd defendant. For interest, the share of Ponnusamy in the suit land was given in possession