Proof of sale agreement and advance insufficient for specific performance without continuous readiness and willingness under Section 16(c); denying contract precludes forfeiture; additional appellate evidence exceptional under Order XLI Rule 27.

JUDGMENT :

A.D. MARIA CLETE, J. 

The present appeals arise from the judgment and decree dated 20.09.2017 passed in O.S. No. 155 of 2014 on the file of the V Additional District Judge, Coimbatore, whereby the suit for the specific performance was dismissed and granted decree for the refund of the advance amount with interest.

2. For the sake of convenience, the parties are referred to as they were arrayed before the Trial Court. The plaintiff has preferred A.S. No.87 of 2018 challenging the dismissal of specific performance, while the defendants have preferred A.S. No.368 of 2018 challenging the decree insofar as refund of the advance amount with interest.

3. The Plaintiff’s case is that ,the suit property originally formed part of the family properties of Govindappa Gounder and Nanjammal. Under a settlement deed dated 25.08.1962, the properties were divided into six schedules, of which the A-schedule fell to Nachimuthu Gounder who is the maternal grandfather of defendants. It is his further case that Nachimuthu Gounder also purchased 4.05 acres in S.F. No.41/2 under a sale deed dated 11.06.1967, and that both items were his separate and self acquired properties. After Nachimuthu Gounder died intestate on 08.06.1993, his legal heirs succeeded to the properties and remained in joint possession. The plaintiff claims to have purchased the two-thirds share of the other co- sharers of the defendants under registered sale deeds dated 22.03.2012, bearing Document Nos.4338 of 2012 and 4339 of 2012, and states that possession, patta and revenue records were thereafter transferred in his favour. The present suit, according to him, concerns only the remaining one-third share belonging to the defendants.

4. The plaintiff further states that defendants 1 to 4 entered into an unregistered sale agreement with him on 18.01.2012 agreeing to sell their one-third share for a total sale consideration of Rs.13,09,000/-, of which Rs.4,00,000/- was paid as advance, leaving a balance of Rs.9,09,000/-. It is his case that he was always ready and willing to perform his part of the contract, but the defendants failed to execute the sale deed. Though he issued a legal notice dated 19.02.2013 calling upon the defendants to complete the sale, they sent a reply dated 08.03.2013 with untenable reasons, while admitting the agreement. He would further allege that the defendants thereafter demanded more money, lodged complaints before the police and the District Registrar, and filed O.S. No.460 of 2013 challenging his earlier purchase deeds and seeking partition, all with a view to evade the agreement. On these pleadings, the plaintiff sought specific performance of the agreement dated 18.01.2012, and in the alternative, refund of the advance amount with interest 15% per annum from the date of suit filed till the date of realization.

5. Defendants’ case: The fourth defendant filed the written statement, which was adopted by defendants 1 to 3. The defendants admitted the relationship of parties and that the property originally belonged to Nachimuthu Gounder, but contended that no partition had taken place among his heirs after his death. According to them, the defendants, being the heirs of Ramathal who is the daughter of Nachimuthu Gounder, were entitled to one-third share, while the remaining two-thirds belonged to the other legal heirs of Nachimuthu Gounder. They would state that, when they demanded partition, the same was refused, and they later came to know that the other co-sharers had executed sale deeds in favour of the plaintiff under Document Nos.4338 of 2012 and 4339 of 2012 without their knowledge or consent. Challenging the said alienations, they issued legal notice dated 16.08.2013 and also filed O.S. No.460 of 2013 seeking declaration that the sale deeds were null and void, partition and separate possession of their share, and consequential injunction.

6. Insofar as the suit agreement dated 18.01.2012 is concerned, the defendants specifically denied execu