Decided on March 23,1950

S.Ramalinga Pillai Appellant
G.R. Jagadammal Alias Jagadamba Ammal Respondents


VISWANATHA SASTRI, J. - (1.) THE plaintiff, whose suit for specific performance of a contract for sale of land belonging to defendant 1 was decreed by the trial Court but dismissed on appeal, has preferred this second appeal. Defendant 1 is the wife of defendant 2. Under Ex. P -1, dated 11 -10 -1943 in the handwriting of the husband and bearing the thumb impressions of the wife, two plots of land belonging to the wife were agreed to be sold to the plaintiff for Rs. 1750, out of which a sum of Rs. 160 was recited as having been paid in advance. The time for completion of the conveyance and payment of the balance of the price was fixed at one month from the date of the contract and it was provided that an encumbrance certificate should be furnished by the vendor to the purchaser before the execution of the conveyance. The plaintiff alleged that on 22 -10 -1943 the title deeds of the property were handed over to him, that the tenant of the land was also made to attorn to him and that he purchased stamp papers and had the conveyance engrossed thereon, but the defendants acting in concert evaded performance of the contract and eventually resiled therefrom. The plaintiff averred that he was ready and willing to perform his part of the contract and prayed for specific performance or for damages in the alternative in the sum of Rs. 1200. He deposited in Court Rs. 1600 the balance of the purchase money along with his plaint. Defendant 1 denied that she entered into the contract Ex. P -1 or received the advance of Rs. 150, or promised to furnish an encumbrance certificate. She denied all knowledge of the delivery of the title deeds of the land or of the attornment by the tenant to the plaintiff or of the purchase of stamp papers and the engrossing of a conveyance thereon. She alleged that her husband took her thumb impressions to a paper representing that it was required for effecting a sale of the groundnut crop on the land for Rs. 150 and that even that sum had not been paid to her. Her 'case was that there was some temporary estrangement between her and husband at the time of the contract and that the agreement, Ex. P -1, if true, must have been brought about by the plaintiff and her husband in collusion with each other for the purpose of defrauding her of her properties.
(2.) THE learned District Munsif discredited the story of the defendants. His findings are as follows : Exhibit P -1 was written by the husband in his own hand and the thumb impressions of the wife were affixed on both pages after Ex. P -1 had been written. The plea that her thumb impressions were taken to a blank paper was untrue. A sum of Rs. 150 was paid as advance on the date of Ex. P -1. The story of a temporary estrangement between the husband and his wife, who had presented him with seven children, of whom the last was a baby a few months old, was untrue and a pretence. The husband and wife were living amicably in the same house throughout. The husband was a shopkeeper and the wife, a shrewd and intelligent lady, who understood the contents of Ex. P -1 before affix. ing her thumb impressions thereto. The wife's story of a sale of a groundnut crop, which was worth only Rs. 40, for Rs. 150 and the execution of some document in connection with the sale of the crop was untrue. The title deeds of the lands were handed over to the plaintiff by the husband and the tenant of the land was also made to attorn to him. The husband had arranged for the purchase of the suit lands for his wife under Exs. p -3 and P -3 (a) for Rs. 235 and RS. 300 in 1941 and 1942. He had also been looking after the cultivation of the land by the tenant and realising the produce. The husband did not induce the wife to affix her thumb impressions to Ex. P -1 on any misrepresentation as to its contents. The wife resiled from the contract after consultation with her mother and evaded performance. The husband has been acting in the interests of the wife both in entering into the contract and in resiling therefrom. The plaintiff and two of the attestors to Ex. P -1 gave an exaggerated and incorrect version of the events connected with the execution of Ex. P -1 and the payment of the advance of Rs. 150. The husband was attending to the negotiations and details of the transaction evidenced by Ex. P -1, though the wife was aware of the contents of the contract for sale. The plaintiff and his witnesses in their anxiety to connect the wife with every detail of the negotiations gave exaggerated and conflicting versions, as for example, about the order in which the attestors came, the conversation that transpired at the time of the execution of EX. P -1, the ink that was used for taking the thumb impressions of the wife, the handing over of the advance of Rs. 150 to the husband or the wife or to both. The husband, who filed a written statement supporting his wife's case and engaged an advocate, who cross -examined the plaintiff's witnesses, did not choose to give evidence in the case. This was a serious infirmity in the defendants' case. At the end of a careful and lucid judgment the learned District Munsif granted a decree for specific performance on the following finding: 'The price is certainly a fair one and there is no special hardship at all in selling lauds for three times the price for which they were purchased.'
(3.) THE learned District Judge substantially, but not entirely, agreed with the findings of the District Munsif and came to the conclusion that defendant l 'ought to have been merely made to pay the plaintiff handsome damages and costs and that the plaintiff should have been refused the remedy of specific performance.' The learned District Judge summed up his conclusion in these words : 'I am of opinion, that in this case Jagadambal (defendant 1) should have been merely made to pay the plaintiff RS. 500 as damages for breach of contract, with interest at 6 per cent. per annum thereon from 22 -10 -1943, the date of the breach, till the date of payment, together with the RB. 10 he had paid that day under Ex. P -4 (a), and interest thereon at 6 per cent. per annum from that date till the date of payment, and Rs. 60 he had wasted on the stamp paper, with similar subsequent interest, and Bupeea 150 he had paid as advance on 11 -10 -1948, with interest thereon at 6 per cent. per annum from that date till the date of payment, and the entire suit costs of Bs. 334 -11 -0 with interest thereon at 6 per cent. per annum from 14 -12 -1945, the date of the lower Court's decree till the date of payment, and the taxed costs in both these appeals and the memorandum of cross -objections with interest thereon at 6 per cent., per annum from to -day till the date of payment, besides the interest on Rs. 1600 deposited by him in the lower Court at 6 per cent. per annum from the date of deposit till to -day, the plaintiff being allowed to withdraw the said sum of Rs. 1600 forthwith. Of course, the aggregate sum thus arrived at should carry interest at 6 per cent. per annum from to -day till payment, and should be made a charge on the suit lands.' The learned Judge purported to act in the exercise of the discretion vested in him as an appellate Court with a view to redress the hardship caused to the defendants by the decree of the District Munsif.;

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