The specific performance of a sale agreement can only be granted for the lawful portion owned by the seller, as an agreement cannot exceed the seller's ownership.

JUDGMENT

(Judgment of the Court was delivered by C.V.Karthikeyan, J.)

The plaintiff in O.S.No.3 of 2012 on the file of the District Court, Kanyakumari at Nagercoil is the appellant herein.

2. O.S.No.3 of 2012 had been filed seeking specific performance of an agreement of sale dated 04.02.2009 entered into between the plaintiff and the first defendant. In the alternate, the plaintiff had also sought that the first plaintiff should be directed to execute a sale deed to an extent of 16 ½ cents and to return back the proportionate amount received by her for 10 cents of land which stood in the name of second defendant/her daughter. By judgment dated 18.12.2017, the suit came to be dismissed, necessitating the plaintiff to file the present appeal.

O.S.No.3/2012 [District Court, Kanyakumari, Nagercoil]:

3. The plaintiff contended that the suit schedule property totally measured 26 ½ cents of land in R.S.No.653/3, at Agasteeswaram Taluk. It is contended that the first defendant executed a settlement deed to an extent of 10 cents out of the said lands in favour her daughter, second defendant. The first defendant offered to sell the suit schedule property and entered into an agreement on 04.02.2009 with the plaintiff for a total sale consideration of Rs.25,00,000/- (Rupees Twenty Five Lakhs only). The plaintiff paid an advance of Rs.20,00,000/- (Rupees Twenty Lakhs only) on the date of the agreement. Subsequently, he also deposited the balance sale consideration of Rs.5,00,000/- (Rupees Five Lakhs only) in the account of the first defendant at Canara Bank on 18.12.2009. The first defendant, however, did not come forward to execute the sale deed.

3.1. On 17.04.2010, the plaintiff and his brother went to the residence of the first defendant and demanded registration of the sale deed. The first defendant stated that her daughter, the second defendant was residing in Bangalore and after she comes back, she would execute the sale deed. She however, permitted the plaintiff to take possession of her portion of the suit property. The plaintiff contended that therefore, he and his brothers constructed a house in the said portion. Thereafter, the plaintiff continuously demanded registration of the sale deed atleast to an extent of 16 ½ cents. The first defendant evaded. It is under those circumstances, the suit had been filed seeking specific performance of either entire area of 26 ½ cents or the limited area of 16 ½ cents and for return of proportionate balance sale consideration.

4. The first defendant filed a written statement claiming that she was misled into entering into an agreement in which her husband also signed as witness. She stated that the value of the property was far higher. The plaintiff had promised that the agreement was only for 16 ½ cents alone. It had been stated that the plaintiff had surreptitiously taken possession and also constructed a building. She also stated that without her knowledge, the amount of Rs.5,00,000/- (Rupees Five Lakhs only) had been deposited in her account. She alleged that the revenue officials had colluded with the plaintiff in granting permission for constructing the house. She stated that it was the brother of the plaintiff, who constructed a house and was living there. She stated that the agreement was not enforceable as no consideration was paid to her. She therefore, stated that the suit should be dismissed.

5. On the basis of the pleadings, the following issues were framed for trial:

“1. Whether the plaintiff and first defendant entered into a sale agreement on 04.02.2009 in respect of the suit property ?

2. Whether the sale agreement dated 04.02.2009 will bind the second