KANAKAVALLY Vs. MADHAVAN

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.930/92. The suit is one for a permanent injunction as well as one for a specific performance of the contract. The brief facts necessary for the disposal of the appeal are stated as follows.

(2.) The plaintiffs are father and daughter. The defendant is a friend of the 2nd plaintiff. The plaint schedule property belonged to the first plaintiff by virtue of a document of the year 1968. The 2nd plaintiff was working along with the defendant in a women's journal from 1988. She was the Editor and the defendant was the Assistant Editor. It is the case of the plaintiffs that due to the financial difficulties the first plaintiff was suffering, the 2nd plaintiff took initiative and thereby the defendant had advanced a sum of Rs. 13,000/- to the first plaintiff on 19.9.88. Towards the security for the loan transaction, it is alleged that the first plaintiff had executed a document in favour of the 2nd plaintiff and the defendant. According to the plaintiffs it is only a paper transaction not acted upon and it is at the most one created as a security for the advancement of the amount. Without the knowledge of the first plaintiff, 2nd plaintiff had executed a document relinquishing her right in favour of the defendant in 1989. It is also not a valid document but that had come into effect at the instance and pressure exerted by the defendant. Thereafter the 2nd plaintiff and the defendant had entered into an agreement whereby it was decided to assign the property in favour of the 2nd plaintiff or her nominee. As per the stipulations in the agreement any amount that is received more than Rs. 29,400/- has to be paid to the plaintiffs. According to the plaintiffs the performance of the contract is to take place on or before 19.6.90. But to the utter dismay of the plaintiffs the defendant is attempting to trespass into the property and attempting to sell the property and thereby they have moved a suit for injunction and by way of amendment as well one for specific performance of the contract.

(3.) On the other hand the defendant would contend that it is a fact that the 2nd plaintiff and the defendant were working together in a women's journal. But according to the defendant the property was assigned in favour of her and the 2nd plaintiff for valid consideration and thereafter the 2nd plaintiff had released her right in favour of the defendant and that the document had been accepted and acted upon and thereby the defendant has become the absolute owner in possession of the property. There was an agreement dated 19.3.89 and the stipulations in the agreement was for resale of the property to the plaintiffs in case they do it on or before 19.6.89. It is found that the plaintiffs had made material alterations in the agreement. It is also contended that the time is the essence of contract and therefore as the suit is filed after 19.6.89 it has become incapable of being performed and so the plaintiffs are not entitled to any relief.