The central legal point established in the judgment is the facilitation of a settlement between the parties, leading to the disposal of the appeal suit and the refund of court fees.

JUDGMENT :

Prayer: First Appeal is filed under Section 96 of the Code of Civil Procedure against the judgment and decree of the Learned First Additional District Judge, Erode, dated 15.10.2008 passed in O.S.No.314 of 2008 dated 25.07.2008.

1. This Appeal is directed against the judgment of the Trial Court, dismissed the suit filed for specific performance.

2. The Appellants are the plaintiff in the suit. The brief facts of the case is that on 25.11.2006, the plaintiffs and the defendants entered into an unregistered agreement for the sale of suit property. The defendants agreed to sale 2.56 acres of land, reserving 14 cents in their personal use. At the time of agreement it was stated by the defendants that it is an ancestral property devolved upon them under registered will dated 31.10.1979 and the registered partition deed dated 09.09.1996. The sale price was fixed as Rs.40,00,000/- and the plaintiff paid a sum of Rs.10,00,000/- as advance on the date of agreement and parties agreed for the payment of balance in three instalments are as below:-

3. The entire sale consideration should be paid on or before 25.10.2007 in default, the vendor agreed to forfeiture of the advance Rs.10,00,000/-. Subsequent to the said agreement, the plaintiffs learnt that the defendant No.3 have two daughters and they also have share in the ancestral property in view of the amendment to Section 6 of Hindu Succession Act, which came into effect on 09.09.2005. The plaintiffs were not informed about this fact and the agreement in respect of property, were minors also have a share. Being in real estate business having realised that the defendants are not the owner of the property exclusively issued notice dated 03.07.2007 to the defendants pointing out the defective title and requested the to cancel the agreement and return the advance money with interest. The defendants refused to do so and issued reply notice with untenable contention. Hence, repudiated the contract alleging that the defendants are guilty of misrepresentation and suppression of material facts.

4. The suit filed for return of advance money and create charge over the suit property for the payment.

5. The defendants filed written statement, wherein, it was contended that the suit is not maintainable and allegations made are untenable. The property is not ancestral property as alleged in the plaint. The defendants represented the plaintiffs that, they own 2.66 acres under the registered partition deed dated 09.09.1996, which is ancestral in nature and another 4 cents given to them by the brother. Totally they own 2.70 acres and out of which, they agreed to sell 2.56 acres of land, retaining 14 cents. The defendants are always ready and willing to execute their part of contract and to clarify the doubt of the plaintiffs regarding the clear markable title. In fact, the plaintiffs entered into an agreement only after fully being satisfied regarding the vendors right but due to some ulterior reason, he want to repudiate the contract quoting untenable reason to avoid the forfeiture clause. The plaintiffs were fully aware of the fact that 2nd defendant have no issue and 3rd defendant have two daughters. The 3rd defendant ready to execute the sale deed on their behalf and on behalf of the minor child, for their welfare, but to wriggle out from the contract with a wrong intention, referring the amendment act, the plaintiffs trying to repudiate the validly executed agreement, hence, he is not entitled for refund and liable to forfeiture the advance money of Rs.10,00,000/- as agreed under the contract.

6. The Trial Court framed following issues:-

(i). Whether the defendants committed breach of agreement?

(ii). Whether the plaintiffs are entitled to get refund of advance amount?

(iii). Whether the plaintiffs ar