CHENICHERI CHERUVARAKKEEL KARTHIAYANI AMMA Vs. THAZHATHE VATTAPARAMBATH GANAPATHI NAMBOODIRI AND ANOTHER

JUDGEMENT

(1.) The first defendant in a suit for specific performance of an agreement for sale, is the appellant. The plaintiff and second defendant are respondents 1 and 2 respectively in the appeal. The appeal is against the judgment and decree of the Court below directing the appellant to execute the sale deed in performance of the agreement for sale.

(2.) The facts involved in this appeal are condensed thus : An agreement for sale (Ext. A1) was executed by the appellant in favour of the first respondent on 20-3-1985 agreeing to sell the plaint schedule property. The consideration for sale of the property was fixed at Rs. 50,000.00, out of which a sum of Rs. 16,000/ was paid in advance. It was agreed that the sale deed would be executed within a period of three years. The property involved in the agreement is described as 79 cents of nilam comprised in R. S. 339/1 in Kunhimangalam Amsom Desom. It was part of the property which was purchased by the appellant under Ext. A2 assignment deed. She had obtained purchase certificate in respect of the said property in O.A. No. 848 of 1976 of the Land Tribunal, Kannur. On 16-2-1987 the first respondent issued Ext. B3 notice to the appellant calling upon her to execute the sale deed on 25-2-1987 on receiving balance consideration. However, the appellant sent Ext. A4 reply on 13-3-1987 contending that Ext. A1 agreement for sale was not really intended to be performed as such but it was executed only as security for the loan amount advanced. Thereafter, the first respondent filed, a suit, O.S. No, 53/87 before the Munsiff's Court, Payyannur, seeking permanent prohibitory injunction restraining the appellant from alienating the property. That suit was decreed in view of Ext. A1 agreement. On 17-3-1985 second respondent, the husband of the appellant, issued a notice to the first respondent contending that the property involved in Ext. A1 agreement really belonged to him and the balance consideration of Rs. 34,000.00 should be paid to him. Since the appellant refused to execute the sale deed even after the issue of Ext. B3 notice the present suit O.S. No. 51 of 1991 was filed before the Subordinate Judge's Court, Payyannur. After the trial the Court below passed a decree directing the first respondent to deposit Rs. 34,000.00 within two months from the date of the judgment and the appellant was directed to execute the sale deed on such deposit. The Court below further ordered that in case the appellant fails to execute sale deed "hin the time stipulated, it would be open to tie first respondent to execute the sale deed enough the process of Court. Hence this appal is filed by the appellant.

(3.) On behalf of the appellant, the following Mentions were advanced;