JUDGMENT : PUSHPA SATHYANARAYANA,J. 1. The appeal is filed against the judgment and decree dated 01.10.2010 in O.S.No.56 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli. 2. The defendant, who is the appellant herein claiming to be the owner of the property situated in Survey No.332/1 measuring 43 cents and 331/2 measuring 57 cents in Kadayanallur Village, entered into an agreement with the plaintiffs on 04.12.2004 for the sale of the said properties. As per the sale agreement, the sale consideration was Rs.1,00,000/- per cent and the sale has to be completed on or before 03.06.2005. 3. An advance of a sum of Rs.34,00,000/- was received by the appellant/defendant on the date of agreement. Subsequently, on 10.02.2005 another sum of Rs.6,00,000/- was received by the appellant and the same was endorsed on the back of the agreement. Thus, the appellant had received a sum of Rs.40,00,000/- as advance. For the purpose of completing the same transaction, the respondents/plaintiffs had applied for encumbrance certificate. The said encumbrance certificate dated 23.05.2005 revealed that the appellant did not have any right or title over the land in Survey No.332/1 measuring 43 cents. It is stated that the respondents had requested the defendant to execute the sale deed at least with regard to Survey No.331/2 an extent of 57 cents and complete the sale or return the advance amount of Rs.40,00,000/-. However, the appellant did not come forward to execute the sale or return the advance amount. According to the respondents/plaintiffs, the appellant and his son-in-law were trying to play a fraud on the respondents. Therefore, a criminal complaint was given to the Inspector of Police, Kadayanallur on 12.06.2005. The anticipatory bail petition filed by the appellant was dismissed and the criminal case against the defendant and his son-in-law is also pending. Even after the above incident, the appellant refused to return the advance amount received by him. Therefore, the respondents/plaintiffs issued a notice on 23.05.2008 calling upon the appellant to pay the advance amount with interest. Thereafter, a suit for recovery of money of Rs.48,44,600/- was filed by the respondents. 4. The suit was resisted by the appellant/defendant on various grounds. The appellant had admitted the execution of the sale agreement dated 04.12.2004 and its contents. Therefore, the respondents/plaintiffs issued a notice on 23.05.2008 calling upon the appellant to pay the advance amount with interest. Thereafter, a suit for recovery of money of Rs.48,44,600/- was filed by the respondents. 4. The suit was resisted by the appellant/defendant on various grounds. The appellant had admitted the execution of the sale agreement dated 04.12.2004 and its contents. The defendant denied the fact that he did not have title over Survey No.332/1 for 43 cents based on the encumbrance certificate. The defendant traced his title based on the partition deed dated 17.03.1942 and registered before the Kadayanallur Sub-Register Office between the paternal grandfather Mohideen Pillai, Fathima Beevi, Makthum Beevi and Alima Beevi. 5. The appellant/defendant further contended that the plaintiffs have got no right to deny the title of the defendant based on encumbrance certificate. The defendant also specifically denied that the plaintiffs had offered to purchase 57 cents of land in Survey No.331/2. It was alleged by the defendant further that the plaintiffs did not have enough money and they were not ready and willing to perform their part of contract based on the sale agreement. The plaintiffs without performing their part of contract and to get over their inability to mobilise the funds for purchase, had deliberately alleged that the defendant did not have the title. 6. The appellant/defendant had further stated in the written statement that he has got the right and title to the property and he has been in possession of the same. The defendant also further stated that he had sent a notice on 21.06.2005 through lawyer calling upon the plaintiffs to perform their part of contract and get the sale executed. Though the plaintiffs had limitation till 04.06.2008, instead of filing a suit for specific performance, they have filed the suit for return of advance amount with ulterior motive and the same is not maintainable. 7. Though the plaintiffs had limitation till 04.06.2008, instead of filing a suit for specific performance, they have filed the suit for return of advance amount with ulterior motive and the same is not maintainable. 7. The defendant had also filed an additional written statement in which it is stated that in the criminal case in C.C.No.63 of 2007 on the file of the learned Judicial Magistrate, Tenkasi, a discharge petition was filed in Crl.M.P.No.7706 of 2007 and the same was dismissed and challenging the said order, Crl.R.C.No.5 of 2008 on the file of the I Additional Sessions Judge, Tirunelveli and the same was allowed vide order dated 26.02.2010, wherein after elaborate discussion, it was held that there was no fraud on the part of the defendant and that the defendant had right and title. Further, the defendant had stated that since the plaintiffs have not come forward to get the sale executed on or before 03.06.2005, a legal notice was issued on 21.06.2005. Though the plaintiffs had received the same, they have not responded. 8. It is further stated by the defendant that as per the agreement dated 04.12.2004, there is no clause for refund of advance amount and if the sale is not executed, the plaintiffs are not entitled for refund of the amount. Therefore, prayed for dismissal of the suit. 9. In the present suit, the learned Additional District Judge, Fast Track Court-II, Tirunelveli had framed the following six issues: 10. Before the Court below, the first plaintiff as P.W.1 and the defendant as D.W.1 were examined. On the side of plaintiffs, Ex.A1 to 10 were marked and Exs.B1 to B31 were marked on the side of the defendant. 11. The learned trial Judge decreed the suit directing the defendant to refund a sum of Rs.40,00,000/- with interest. Aggrieved by the same, the above first appeal is filed. 12. Heard S.Natarajan, learned counsel appearing for the appellant and Mr.M.P.Senthil, learned counsel appearing for the respondents and perused the materials available on record. 13. The question that arises for consideration in this first appeal is as follows: “Whether the plaintiffs/respondents are entitled for the refund of the advance amount paid pursuant to the agreement Ex.A1 dated 04.12.2004?” 14. The execution of the sale agreement by the defendant in favour of the plaintiffs on 04.12.004 is admitted. 13. The question that arises for consideration in this first appeal is as follows: “Whether the plaintiffs/respondents are entitled for the refund of the advance amount paid pursuant to the agreement Ex.A1 dated 04.12.2004?” 14. The execution of the sale agreement by the defendant in favour of the plaintiffs on 04.12.004 is admitted. As per the agreement, the lands belonging to the defendant were agreed to be sold to the plaintiffs at the rate of a sum of Rs.1,00,000/- per cent and a sum of Rs.34,00,000/- was given as advance on the date of agreement. Subsequently, a receipt of Rs.6,00,000/- paid on 10.02.2005 was also acknowledged by the defendant. The time fixed as per the agreement was six months. 15. The learned counsel appearing for the appellant/defendant argued that the plaintiffs ought to have paid the balance of the sale consideration on or before 03.06.2005 and got the sale deed executed in their favour. However, as they were not ready and willing, the sale deed could not be executed. It was further stated that the defendant had issued a legal notice on 21.06.2005 calling upon the plaintiffs to pay the balance of the amount and get the sale deed executed. The said notice was marked as Ex.B23. The said Ex.B23 is denied by the plaintiffs as according to them, it was only a document created by the defendant for the purpose of the suit and the same was not actually sent to the plaintiffs. The defendant also had not produced postal receipt and even the acknowledgment card for having sent the same. 16. The learned counsel appearing for the appellant pointedly argued that the agreement mentioned properties belong to the appellant as owner. The defendant placed reliance on Ex.B28, dated 12.05.1941, which is the sale deed in which the paternal grandfather of the defendant had purchased 1.88 acres in Survey No.331/2 and 47 cents in Survey No.332. As per the above document, in Survey No.331/2, 1.88 acres and in Survey No.332, 81 cents belonged to the paternal grandfather of the defendant and one Fathima Beevi and others. Pursuant to that, there was a partition deed dated 17.03.1942 between the paternal grandfather of the defendant and Fathima Beevi, Makthum Beevi and Alima Beevi. 17. As per the above document, in Survey No.331/2, 1.88 acres and in Survey No.332, 81 cents belonged to the paternal grandfather of the defendant and one Fathima Beevi and others. Pursuant to that, there was a partition deed dated 17.03.1942 between the paternal grandfather of the defendant and Fathima Beevi, Makthum Beevi and Alima Beevi. 17. In the said document, the properties allotted to the defendant's grandfather in Survey No.332 was described with specific boundaries, whereas in Survey No.331/2, there was no specific boundaries mentioned. On the contrary, the plaintiffs had contended that through the encumbrance certificate dated 23.05.2005 they came to know that the defendants did not have title or interest over the land in Survey No.331/2 measuring 43 cents. Thereafter, the plaintiffs had approached the defendants informing about the defective title of the land in Survey No.331/2 and requested him to complete the sale in respect of 57 cents in Survey No.332/1 or return the advance amount of Rs.40,00,000/-, which was not agreed by the defendant. Having found the fraudulent act of the defendant, the plaintiffs attempted to resolve the problem amicably between them with the help of the elders of the family. But, in spite of several requests, the defendant did not come forward to resolve the issue. Having part with Rs.40,00,000/-, the plaintiffs had lodged a complaint with the Inspector of Police, Kadayanallur on 12.06.2005 against the defendant and his son-in-law. Immediately thereafter, the defendant filed a petition seeking anticipatory bail in Crl.O.P(MD)No.5818 of 2005, which was also subsequently dismissed on 04.07.2005. A cheating case was also booked against the defendant and the same was pending. In spite of the above, the defendant refused to repay the advance amount. Hence, a legal notice was issued by the plaintiffs on 23.05.2008, within the period of limitation calling upon the defendants to return the advance amount with interest. 18. In the light of the above facts, the learned counsel for the appellant argued that the advance amount or the earnest money that has been paid to the vendor cannot be refunded for the fault of the vendee and placed his reliance on the decision reported in AIR 1926 Privy Council 1 (Kunwar) Chiranjit Singh v. Har Swarup). The said principle was also followed in the decision reported in AIR 1929 Nagpur 30 (2)(Full Bench) (Abas Ali v. Kodhusao). The said principle was also followed in the decision reported in AIR 1929 Nagpur 30 (2)(Full Bench) (Abas Ali v. Kodhusao). The question referred for consideration of the Full Bench is as follows: “If A agrees to sell a property to B and earnest money or an advance payment of part of the purchase-money is paid to A, and if B subsequently commits a breach of the contract, is B entitled to recover from A, the advance payment or earnest money in question?” 19. In the light of the above decision also, it can be seen that the agreement sale Ex.A1 is silent about the forfeiture of the advance amount in the event of breach by the vendee. From the forgoing facts, it can be seen that the time agreed for execution of sale was six months which was till 03.06.2005. The plaintiffs had obtained encumbrance certificate on 23.05.2005 and had negotiated with the defendant about the title of the defendants. Thereafter, a criminal complaint was also lodged on 12.06.2005. From the above it can be presumed that the plaintiffs were ready and willing to perform their part of contract and they were only waiting for the title to be cleared by the defendants. There is no iota of evidence from the side of the defendant produced to confirm the title of the defendant. Ex.B25, which was produced by the defendant is the copy of the decree in O.S.No.664 of 2005. The said suit was between O.S.S.Sheik Uduman Ravuthar, O.S.S.Syed Ravuthar and O.S.S.Bakeer Mydeen and the defendant herein and three others. The said suit was also dismissed for default. Ex.B26 is the order passed in Crl.R.C.No.5 of 2008 on the file of the I Additional Sessions Judge, Tirunelveli to discharge the defendant and his son-in-law, from the charges levelled against them in C.C.No.63 of 2007. The above documents also will not go to prove the title of the defendant. 20. The next document filed by the defendant is Ex.B30, which is the partition deed dated 19.04.1950. As per the same, only the defendant's father was entitled to Survey No.332/1 and the rest of the documents namely kist receipts under Ex.B15 to Ex.B22 are all in the name of Uduman Mohideen, but that will not determine the title of the defendant. The next document filed by the defendant is Ex.B30, which is the partition deed dated 19.04.1950. As per the same, only the defendant's father was entitled to Survey No.332/1 and the rest of the documents namely kist receipts under Ex.B15 to Ex.B22 are all in the name of Uduman Mohideen, but that will not determine the title of the defendant. When the defendant was informed about the defective title by the plaintiffs, it is the bounden duty of the defendant to clarify his title as the agreement specifically states that the property will be sold free of any encumbrance. When the objection was raised about the title of the defendant, he should have clarified his absolute right and title over the property. 21. In Pemmada Prabhakar v. Youngmen'S Vysya Assn., (2015) 5 SCC 355 : (2015) 3 SCC (Civ) 56 : 2014 SCC On Line SC 653, the Honourable Supreme Court has held as follows: “29.The provisions of Section 17 of the Specific Relief Act in categorical terms expressly state that a contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have an absolute title and right upon the property. It is worthwhile to extract Section 17 of the Specific Relief Act, 1963 here: “17.Contract to sell or let property by one who has no title, not specifically enforceable.—(1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor— (a) who, knowing not to have any title to the property, has contracted to sell or let the property; (b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.” In view of the aforesaid provisions of the Specific Relief Act, the agreement of sale entered into between the plaintiffs and some of the co-sharers who do not have the absolute title to the suit schedule property is not enforceable in law.” 22. Admittedly, the defendant did not have any right or title to Survey No.332/1. Admittedly, the defendant did not have any right or title to Survey No.332/1. It is not in dispute that the plaintiffs are realtors and the property was intended to be purchased only for the purpose of laying out and sold to various individuals. In such circumstances, the plaintiffs cannot be compelled to split the property and purchase only one portion and get the sale deed executed. The defendant also had not taken any steps to get the sale deed executed. In the absence of specific clause for forfeiture of the advance amount, the defendant cannot retain the amount and unlawfully enrich himself. 23. The learned counsel for the respondents placed his reliance on Section 17 of the Specific Relief Act, 1963 and argued that the agreement cannot be enforced when knowing himself that the defendant did not have title deed to the property had contracted to sell the same. Even though the plaintiffs had brought to the knowledge of the defendant that he did not have a valid title, it is the duty of the defendant to have clarified the same and convince the plaintiffs to proceed with the sale. Even as per Section 55 of Transfer of Property Act, 1882, the defendant being the seller is bound to disclose any material defect in the property of which the seller is, and the buyer is not, aware and which the buyer could not with ordinary care discover. 24. In Haryana Financial Corpn. v. Rajesh Gupta, (2010) 1 SCC 655 : (2010) 1 SCC (Civ) 205 at page 664, the Honourable Supreme Court has held as follows: “25 [Ed Para 25 corrected vide Official Corrigendum No. F. 3/Ed.B.J./16/2010 dated 25-1-2010.] .The aforesaid section provides as under: “ 55. (1) The seller is bound— (a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power; A mere perusal of the aforesaid provision will show that it was incumbent upon the appellant Corporation to disclose to the respondent about the non-existence of the independent passage to the unit. It was also the duty of the appellant Corporation to inform the respondent that the passage mentioned in the revenue record was not fit for the movement of vehicles. The appellant Corporation also failed to produce to the buyer the entire documentation as required by Section 55(1)(b) of the aforesaid section. We are therefore satisfied that the appellant Corporation cannot seek to rely on the aforesaid provision of the Transfer of Property Act, 1882.” 25. The Appellant/Defendant has produced Ex.B1 to B31 most of which are kist receipts or encumbrance certificate, which do not clearly prove that the defendant had absolutely right over the property in Survey No.332/1 for 43 cents. Mere production of patta and adangal, will not confer title. The mere fact that there is no subsequent transaction with regard to the property in Survey No. 332/1, will not automatically give right or title to the defendant. When the defendant is not capable of making good the title of the property, the respondents cannot be expected to enforce the contract. Hence, equity warrants that the appellant is bound to return the advance amount taken from the respondents herein and pay the same with 12% interest as rightly found by the Trial Court. 26. In the light of the above discussion, the judgment and decree dated 01.10.2010 passed in O.S.No.56 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli, is confirmed and the appeal suit is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.