IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on:03.07.2023 Delivered on: 14.07.2023 CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI S.A.No.396 of 2007 1.Pulliammal (died)

2.Ponnusamy ... Appellants (Appellant 2 and respondent 3 bought on record as LR's of the deceased

1^st appellant viz., Pullliammal vide order of Court dated 01.03.2021 made in C.M.P.No.1 of 2009 in S.A.No.396 of 2007)

Vs.

1.S.Savitha

2.T.K.Iyyannan

3.Rajammal ... Respondents PRAYER: Second Appeal filed under Section 100 of C.P.C against the judgment and decree passed dated 02.09.2006 passed in A.S.No.42 of 2006 on the file of Principal District Court, Salem in confirming the judgment and decree dated 17.04.2006 passed in O.S.No.60 of 2004 on the file of the Sub-Court, Mettur.

For Appellants : Mr.P.Mani For Respondents : Mr.A.K.Sriram, Senior Counsel for Mr.A.Sundaravadhanam for R1 No Appearance for R2 and 3

JUDGMENT

The unsuccessful 1^st defendant in a suit for Specific Performance of an agreement of sale is the appellant.

2. The 1^st respondent as plaintiff,filed a suit for Specific performance of the agreement of sale dated 02.09.2004. It is the case of the plaintiff that the 1^st defendant is the owner of the suit property and that she had executed a Power of Attorney in favour of the plaintiff’s father-in-law i.e, the 2^nd defendant on 01.09.2004 and that in pursuance of the said Power of Attorney, the 2^nd defendant, representing the 1^st defendant,executed a registered sale agreement in favour of the plaintiff. The sale consideration for the suit property was fixed at Rs.1,50,000/-and according to the plaintiff, even on the date of the agreement a sum of Rs.1,00,000/- was paid. The balance sale consideration of Rs.50,000/- was agreed to be paid within a period of 3 years. The plaintiff paid the balance sum of Rs.50,000 on 04.09.2004 for which the 2^nd defendant also issued a receipt on the same day. It was agreed that the 2^nd defendant would execute the sale deed on 14.09.2004, being a new moon day. The 2^nd defendant also handed over the receipt issued by the 1stdefendant for the entire sale consideration of Rs.1,50,000/-, evidencing the fact that the entire sale consideration was paid to the 1^st defendant by the 2^nd defendant. Subsequently, the plaintiff met the 1^st defendant in person and called upon her to come for registration on 14.09.2004 and according to the plaintiff, the 1^st defendant also confirmed the fact that she had received the sale consideration from the 2^nd defendant in full and agreed to come to the registrar’s office. However, since the 1^st defendant did not turn up as promised, the plaintiff was constrained to issue a notice to the defendants on

17.09.2004. On receipt of the said notice, the 1^st defendant issued a telegram to the plaintiff’s counsel on 22.09.2004 stating that she had already cancelled the Power of Attorney and therefore she would not be in a position to comply with the plaintiff’s demand. The plaintiff has approached the court seeking Specific performance, immediately thereafter, by instituting the suit which is the subject matter of the Second Appeal.

3. The 1^st defendant filed a written statement stating that the 1^st defendant was not the sole owner of the suit property which was ancestral in nature and consequently her son and daughter also have a right in the same. The 1^st defendant denied the execution of Power of Attorney in favour of the 2^nd defendant, authorising the 2^nd defendant to deal with the suit property. The 1^st defendant had specifically pleaded that she approached the 2^nd defendant for a loan and while borrowing a sum of Rs.5,000/-, her thumb impression was obtained at the Sub-Registrar’s Office and she executed the alleged agreement of sale without knowing the contents of the document. The 1^st defendant also stated that the Power of Attorney was itself obtained by the 2^nd defendant by foul means and therefore there was no question of the 1^st defendant becoming answerable to the plaintiff in respect of the sale