J U D G M E N T

This appeal suit arises out of the judgment and decree, dated

15.06.2009, passed by the learned Principal District Judge, Cuddalore, in Original Suit No.108 of 2008.

2.The sole plaintiff before the Court below is the appellant herein.

Pending this appeal, the sole plaintiff died on 01.07.2015 and therefore, his legal heirs were brought on record as appellants 2 to 4.

3.The sole plaintiff filed the suit in O.S. No. 108 of 2008 for specific performance. The case of the plaintiff is that the defendant borrowed a sum of Rs.25,000/- from him and executed a simple mortgage deed dated 15.06.1993 in his favour in respect of the suit property. In order to discharge the loans availed from the plaintiff and several other persons, the defendant offered to sell the suit property to the plaintiff and sale price was fixed at Rs.7,00,000/-. On 10.05.2008, an agreement of sale was entered into between the plaintiff and the defendant, in which, the sale consideration was indicated as Rs.7,00,000/-. The plaintiff agreed to discharge the loans availed by the defendant to the tune of Rs.4,00,000/- and the same was adjusted towards the sale consideration. On the date of agreement, the plaintiff paid a sum of Rs.2,00,000/- in cash towards sale advance and agreed to pay the balance within a period of three months on which event, the sale has to be completed. Therefore, the plaintiff has totally paid a sum of Rs.6,00,000/- to the defendant as sale advance. Since only a small portion of amount, i.e., Rs.1,00,000/- was remaining to be paid, the defendant also handed over the possession of the suit property to the plaintiff. According to the plaintiff, right from the date of agreement of sale, the plaintiff has been ready and willing to perform his part of contract. However, since the defendant has been evading to perform her part of contract, the plaintiff was constrained to file the suit.

4.Despite paper publication, the defendant had not chosen to appear before the trial Court and contest the suit, she remained absent and hence, was called absent and set ex parte before the trial Court.

5.The trial Court framed the following issues :

i. Whether the plaintiff is entitled to a decree as prayed for ?

ii. To what relief the plaintiff is entitled ?

6.Before the trial court, Mr. Ratchagar, sole plaintiff, examined himself as P.W.1 and Exs.A1 and A2 were marked.

7.Though there was no contest by the defendant, the trial Court observed that the agreement of sale Ex.A2 is an unregistered document as contemplated under Section 17 (1-A) of Registration Act, 1908, as such, the sale agreement shall have no effect for the purpose of Section 53-A of the Transfer of Property Act, 1882. Accordingly, the trial Court held that the claim of the plaintiff as to part performance of contract under Ex.A2 cannot be valid. Since Ex.A2 is an unregistered document, the plaintiff is not entitled to the relief of specific performance but entitled only for alternative relief. As such, the Court below decreed the alternative relief, directing the defendant to pay a sum of Rs.6,00,000/- with interest at 12% per annum from the date of sale agreement i.e., 10.05.2008 till the date of realization.

8.Challenging the findings of the Court below, the plaintiff has come forward with the present appeal.

9.The learned counsel appearing for the appellants would contend that the findings of the Court below holding that Ex.A2 is an unregistered sale agreement and therefore, the plaintiff is not entitled to the relief of specific performance, are not tenable and are liable to be set aside. The learned counsel would further contend that, even though the defendant remained ex parte, the Court below has stepped into the shoes of the defendant and decided the matter in favour of the defendant, instead of decreeing the suit as prayed for. The defendant was given adequate opportunities to contest the suit and even paper publication was effected as substituted service. Inspite of the same, the defend