EARAMMA MOGERTHI Vs. KUPPA MOGAVEERA

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 30.10.2007 passed by the Civil Judge (Sr.Dn.), Kundapura in R.A. No. 51/2004 confirming the order passed by the Ii Additional Civil Judge (Jr.Dn.) and JMFC. Kundapura in O.S. No. 23/2002, the appellants have preferred this appeal.

(2.) IT appears the defendants in respect of the property fallen to their share under a family partition, to sell the property to the plaintiffs husband. The defendants and the plaintiffs husband entered into an agreement on 02.03.1994. It appears even prior to that, since there was an agreement in the partition between the husband of the plaintiff and defendants, one of the property was offered to the plaintiffs husband and the sale consideration was fixed at Rs. 23,000/ -. The said amount has been paid on 02.03.1994 by way of cash to the first defendant towards full sale consideration and plaintiffs husband was put in actual possession and enjoyment of the 'A' Schedule property. Stating that plaintiffs husband Mr. Manjayya Mogaveera was put in actual possession and enjoyment of the property in question a suit for specific performance came to be filed. It appears that the husband of the plaintiff/Manjayya Mogaveera died on 27.01.1996. As on the date of filing of the suit and prior thereto the plaintiff and her children went on requesting the first defendant to execute the sale deed. However the same has been postponed by the first defendant. First plaintiff got issued a registered legal notice dated 22.12.2001 and the same was served on him. The suit came to be filed on the ground that agreement is denied and on the point of sale consideration. The trial court, on matter being contested, framed four issues for consideration.

(3.) THE substantial question of law that arises for consideration in this appeal is as under: