G CHELLIAH NADAR DIED Vs. PERIASAMI NADAR

JUDGEMENT

(1.) THE appellant is the plaintiff before the trial Court. He instituted the suit for specific performance on the basis of Ex. A-1 the agreement dated 16. 1. 1973 entered with Manicka Naicker the first defendant (since deceased ). His case is that he is carrying on joint family business under the name and style of Chelliah Nadar and sons. THE first defendant acting for himself and on behalf of his wife and the second defendant (since deceased)entered into an agreement with him under Ex. A-1 for the sale of the premises bearing Door No. 4, Kalmandapam Road, Royapuram, Madras for Rs. 57,000 on 16. 1. 1973. So far the first defendant had received Rs. 22,000 as advance. As per the agreement the appellant who is in occupation of a portion of the house was authorised to receive rents from the other two tenants in the building. Under the terms of the agreement the balance of the purchase money has to be paid and sale deed registered within 11 months from that date. However, the first defendant collusion with the third defendant first respondent and Chandra Bose one of the sons of the appellant attempted to resils from agreement. THEreupon, the appellant sent the original of Ex. A-3 notice on 4. 7. 1974. He also caused a publication to be made in' 'Malai Murasu" dated 7. 7. 1974, as per Ex. A-2. At the instance of the third defendant first respondent, defendants 1 and 2 have conveyed the property in favour of the 4th defendant 2nd respondent under Ex. B-1 dated 11. 7. 1974. This appellant has per-formed his part of the contract and he is always ready and willing to comply with the terms of the agreement. Ex. B-1 sale deed cannot confer any right, title or interest in derogation of the rights of the appellant under ex. A-1. THE 3rd respondent is the L. R. of deceased second defendant.

(2.) DEFENDANTS 1 and 2 resisted the action pleading that they never entered into any agreement of sale with the appellant. They did not hand over possession of the suit house to the appellant at any time. Their agreement of sale was only with Chandra Bose, the son of the appellant. Since the latter could not complete the transaction within the stipulated time, he expressed his inability to go through the sale and released his rights under ex. B-7 dated 25. 3. 1974. He requested for the return of the advance amount after selling the suit property to third parties and surrendered possession. Thereupon, these defendants conveyed the property in favour of the fourth defendant under ex. B-1 sale deed dated 11. 7. 1974 and returned the advance amount paid by the chandra Bose on the same day. Ex. B-8 is a receipt passed by Chandra Bose. They also contended that the original agreement entered into between them and the said Chandra Bose differs from their copy of the agreement. It has been forged by the appellant by adding words suitable to him and the same appears to have been filed in criminal proceedings instituted against him and others for forgery. Obviously for this reason the appellant has instituted the suit with a photostat copy of the agreement. The fourth defendant claims that only after satisfying himself of the title deeds and the letter written by Chandra Bose, he got the property conveyed in his favour.

(3.) ONE Chairman Selvaraj is purported to have attested ex. A-1 agreement. P. W. I states that the said Selvaraj has written the words' 'Chelliah nadar and Sons' ' in the agreement. Except the signatures the entire writings therein are in the handwriting of Chairman Selvaraj. However, this Chairman Selvaraj has not been examined by the appellant. According to him, he could not examine Selvaraj since he is colluding with the third defendant. But he admits in cross-examination that subsequent to the institution of this action Bose and the third defendant Periasami Nadar had filed criminal case against this witness and his other sons and Chairman selvaraj. While so, his claim that Chairman Selvaraj is colluding with the third defendant is untenable. The examination of Selvaraj as a witness would have thrown light on the apparent interpolation we have noticed in Ex. A-1.