JUDGMENT

DR.G.JAYACHANDRAN,J.

AND SUNDER MOHAN,J.

This appeal is filed by the defendant arising out of the judgment and decree passed in O.S.No.98 of 2008 for specific performance.

2. According to the plaintiff, who is the first respondent in this appeal, the suit property is an ancestral property of the defendant. The defendant got the property by way of partition between him and his brothers. On 16.09.2005 the defendant agreed to sell 5 acres 8 ½ cents at the rate of Rs.6,19,000/- per acre to the plaintiff. It is an un-registered agreement. As per the terms of agreement, 4 months time was fixed to complete the contract and a sum of Rs.2,00,000/- was received by the defendant as advance. The agreement could not be completed due to some litigations over the property. Further, the defendant has issued notice on

16.09.2006 calling upon the plaintiff to perform the contract within 15 days or else, the contract will be cancelled. Thereafter, the plaintiff when approached the defendant in person, he demanded further money and promised to clear the cloud over the property. Believing his words, a sum of Rs.1,50,000/- as cash was given to the defendant on 25.07.2007. Receipt of money was also endorsed in the agreement.

3. In addition, a cheque for Rs.3,50,000/- was issued. The said amount was paid believing the words of the defendant that he will make use of the money to clear the litigation of the property. When the plaintiff became suspicious about the conduct of the defendant, informing the bank not to honour the cheque and accordingly, cheque of Rs.3,50,000/- for part sale consideration was not honoured. In the said circumstances, to enforce the contract, notice dated 14.05.2008 was caused to the defendant for which, the defendant gave a reply through the lawyer on 17.05.2008 with all frivolous reasons. The defendant in his reply stated that he is not the absolute owner of the suit property and his two daughters have 1/3rd share each in the suit property. Therefore, the contract cannot be enforced.

4. Referring the pending suits between him and others in respect of the suit property, the defendant attempts to evade the enforcement of the contract. Hence, specific performance of the contract in terms of the contract or alternate relief of return the advance money with interest has been filed.

5. In the written statement, the defendant agreed that the contract entered between him and the plaintiff in respect of the suit property. However, the defendant has not performed his part of contract within the time prescribed. Having failed to perform the contract the plaintiff is liable to forfeit the advance. In reply notice, he has also made it clear that the suit property cannot be alienate by him since there are other share holders in the property. The additional advance of Rs.1,50,000/- as cash and Rs.3,50,000/- as cheque was received by him with that money he can clear all the litigations. The said cheque was dishonoured on the instruction of the plaintiff to his bank to stop the payment. The plaintiff has torpedoed the agreement by committing breach of contract hence he is not entitled for specific performance.

6. The trial Court framed the following issues based on the pleadings:-

1)Whether the plaintiff is ready and willing to perform the contract?

2)Whether the suit is barred by limitation?

3)Whether the plaintiff is entitled for the relief of specific performance?

4)Whether the plaintiff is entitled for alternative relief of refund of advance money?

5)What other reliefs?

7. To substantiate the plaintiff's case, three witnesses were examined and 8 exhibits were marked. On the side of defence, three witnesses were examined and 10 exhibits were marked.

8. The trial Court, after appreciating each evidence, held that the plaintiff is entitled for relief of specific performance.

9. Being aggrieved, the appeal is filed by the defendant. Pending appeal, the defendant died and his legal representatives are brought on record.

10. Learned counsel appearing