AMMUKUTTY AMMA Vs. UMADEVI AMMA AND ANOTHER

JUDGEMENT

(1.) The second appeal arises from a suit for specific performance of a contract for sale. First defendant is the appellant herein. The suit O S. 124/84 before Sub Court, Shertallai was filed by first respondent herein (hereafter referred as plaintiff) against appellant (hereafter referred as first defendant) and one Gopalakrishnan Nair who remained ex parte in the suit. Plaint alleges that first defendant had agreed to sell the plaint schedule property to plaintiff for a total consideration of Rs. 14,000/ -. An agreement was entered into on 8 -11 -1982. An amount of Rs. 7,750/ - was paid as advance towards purchase price and the balance was agreed to be paid within three months. On knowing about the intended sale to second defendant from a suit was filed by plaintiff before Munsiff's Court, Shertallai as O. S. 608/82 to restrain first defendant from alienating the property. Thereafter a notice was sent asking first defendant to execute the assignment deed. She having failed to perform her part of the contract plaintiff was constrained to file, the suit. First defendant denied the execution of the document and receipt of the advance. She therefore disclaimed liability to execute the sale deed. She further contended that an agreement was entered into between the 2nd defendant and herself. The trial court on an appreciation of the evidence held the agreement Ext. A2 alleged to have been executed by the first defendant to be not genuine. In consequence the suit was dismissed. On appeal the lower appellate court reversed that decision and held that the document is genuine. It was further found that first defendant was having absolute rights over the property. The appellate court directed the first defendant to execute an assignment deed in respect of the plaint schedule property after receiving the balance consideration. It is against that decision that first defendant has come up in second appeal.

(2.) The fallowing substantial questions of law are seen formulated in the appeal memorandum.

(3.) Heard counsel on both sides.