The defendant is in appeal. 2. The respondent herein filed the suit before the Sub Court, Palakkad for recovery of an amount of Rs.23,000/- with interest thereof. The suit was resisted by the appellant. The trial court dismissed the suit against which the respondent herein preferred an appeal before the District Court, Palakkad. The Appellate Court allowed the respondent to realise from the defendant a sum of ₹23,000/- together with interest @ 6% per annum from 24.11.1989 till the date of realisation. It is against this, this second appeal has been preferred.
3. The respondent and the appellant entered into an agreement viz., Ext.A1 by which consideration was fixed at the rate of ₹50,000/- per acre and ₹23,000/- was paid by the plaintiff by way of advance to the defendant. The appellant alleged that the deed of conveyance had to be executed and registered on or before 24.11.1989, at the instance of the respondent after paying the balance sale consideration. It was also stated that in the event of default by the respondent, the advance amount would be forfeited by the appellant. The respondent alleged that he was ready and willing to perform his part. However, the appellant was evading.
4. Ext.P2 registered notice was sent by the appellant demanding registration on 30.11.1989. This was replied by the respondent. In answer to this, Ext.A4 notice was further issued by the appellant to which, the respondent gave Ext.A5 reply. The respondent refused to execute the agreement on the ground that though he was made to believe that the property belonged to the appellant, she being the only legal heir of her husband, she had two children and the appellant's husband was survived by his mother also. As they are also heirs to the property, the respondent alleged that the appellant has no absolute title to the property to give a valid conveyance as agreed. Therefore, the respondent maintained the stand that she is entitled to rescind the contract.
5. In the written statement, the appellant contended that the respondent very well knew that the property belonged to her husband and that the appellant had two minor children. According to her, the agreement was prepared by the plaintiff and defendant and they have subscribed their signature. She further contended that in order to see that the respondent gets the property un-encumbered, she has settled the compensation due to the agricultural labourers and, thus, a sum of ₹34,500/-
was paid. She further contended that she could not cultivate the property because the property had to be conveyed to the respondent. Therefore, she maintained the stand that the respondent has committed breach. Hence, she is entitled to forfeit the amount of ₹23,000/-.
6. The trial court after raising proper issues for trial permitted both sides to adduce evidence. At the trial stage, PW1 and DW1 were examined, Exts.A1 to A5, B1 and B2 were marked.
The trial court after considering the evidence dismissed the suit. The respondent took the matter in appeal before the lower Appellate Court which observed that the avoidance of contract by the respondent is genuine and, therefore, the appellant is liable to repay the part consideration which she had already received. It is with this background, the appellant has come up before this Court with the second appeal.
7. Arguments have been heard..
8. Though eight questions of law have been raised, the learned counsel for the appellant gave thrust to the following questions law at the time of argument:
(i) Does not the amount paid by way of advance constitute only a security for the due performance of the contract?
(ii) Is not the defendant liable to forfeit the amount in terms of Ext.A1?
9. Execution of Ext.A1 is admitted.
10. The respondent rescinded the contract on the ground that the appellant projected herself as the sole heir of her deceased husband and, therefore, she is able to convey valid title over the property covered by Ext.A1 agreement. However, it is an admitted case that the husband of the appellant was survived by his mother and appellant and her children. Unfortunately, these things are not reflected in Ext.A1. The stand taken by the appellant is that the courts below should have found that the plaintiff had agreed to convey her right in the property and that the consideration of ₹15,000/- per acre was fixed for the share of the appellant. I am not inclined to accept the said argument.
11. Though it is true that under Section 12 of the Specific Performance Act the plaintiff can purchase share of the defendant, the only option before the respondent was to rescind the contract as the agreement was to convey title over the entire property on the sole legal heir of the deceased husband of the appellant. Under such an eventuality, it was only just and proper for the Appellate Court to grant a decree in favour of the respondent allowing her to get reimbursement of ₹23,000/-
which she had already paid as part of sale consideration.
On a consideration of the materials now placed on record, this Court is of the view that the questions of law has been rightly answered by the trial court and, therefore, it does not call for interference of this Court in second appeal. Therefore, the appeal fails and accordingly, it is dismissed. No order as to costs.
krj Sd/- A.V.RAMAKRISHNA PILLAI JUDGE /True Copy/ P.A to Judge