IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 27.03.2024 PRONOUNCED ON: 07.06.2024 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA S.A.No.248 of 2021 and C.M.P.No.4825 of 2021 K.J.Chandrasekar (Died) 2. Vasantha chandrasekar A2 is brought on record as Lr's of the deceased A1 vide court order dated 14.12.2023 made in C.M.P.No.1507 of 2022 in S.A.No.248 of 2021 ...Appellant vs

1. K.S.Jayanthkumar

2. N.Jayaraman (died)

3. Revathi

4. Sasirekha

5. S.Poornima

6. Janani (Respondents 5 and 6 are brought on record as LRs of the deceased R2 vide order of Court dated 05.02.2024 made in C.M.P.No.1501 of 2022 in S.A.No.248 of 2021 ...Respondents Prayer : Second Appeal is filed under Section 100 of C.P.C against the judgment and decree of the Principal District Court at Krishnagiri dated 29.03.2019 in A.S.No.12 of 2018 confirming the judgment and decree passed by the Subordinate Judge at Uthangarai dated

19.04.2017 in O.S.No.306 of 2014.

For Appellant : Mr.P.Valliappan, senior counsel for Mr.N.Loganathan For Respondents : Mr.P.M.Duraiswamy

3, 5 and 6 For Respondent-4 : Mr.K.Ramesh Kumar For Respondent-1 : No Appearance For Respondent-2 : Died

JUDGEMENT

The unsuccessful plaintiff in a suit for specific performance is the appellant before this Court.

2. Pending the appeal, the appellant had passed away and his legal representative (wife) has been brought on record as the second appellant.

3. The second appeal has not been admitted and only notice was directed to the respondents on 17.03.2021 and the matter had been posted under the caption “adjourned admission”.

4. The short facts which are required for considering the above second appeal are herein below set out.

Plaintiff's case:

(i) The plaintiff had come forward with a case that the second defendant, who is the owner of the suit schedule property, had on 12.01.2006 executed a Power of Attorney in favour of the first defendant authorizing him to alienate the property and the same was registered on 13.01.2006. The first defendant thereafter entered into an agreement of sale for and on behalf of the second defendant with the plaintiff. The total sale consideration that had been negotiated was a sum of Rs.3,00,000/-. On the date of the execution of the agreement of sale, a sum of Rs.25,000/- was paid as an advance and the time stipulated for paying the balance sale consideration was a period of one year. The agreement stipulated that on the receipt of the balance sale consideration, the sale had to be executed in favour of the plaintiff or his nominee.

(ii) The plaintiff would further submit that though a period of one year was granted for completing the contract, he had, on 02.12.2006, paid the balance consideration of Rs.2,75,000/- and receiving the said sum, the first defendant had made an endorsement to that effect in the agreement of sale. Though over 3 years had lapsed, the first defendant had not come forward to perform his part of the contract, which constrained the plaintiff to issue a legal notice on 27.08.2010 which was received by the defendants on 28.08.2010. However, the defendants had neither responded to the notice nor complied with the demand made therein. Therefore, the plaintiff had applied for encumbrance certificate on 24.09.2010 and was shocked to learn that the second defendant had gifted the property upon his wife, the third defendant on 19.10.2007 and she, in turn, has sold the property on 06.09.2010 to the fourth defendant. The plaintiff would submit that these transactions would not bind by him and he had therefore come forward with the suit in question. Pending the suit, the sole plaintiff had died and his wife was brought on record as the second plaintiff.

5. Written statement of the defendants 2, 3 and 4 (i). The second defendant had filed a written statement, which was adopted by the defendants 3 and 4. The defendants had admitted that the property belonged to the second defendant. He would contend that the first defendant was a money lender. While sanctioning the loan, the