KRISHNAN Vs. KOODERI DEVAKI

JUDGEMENT

(1.) Plaintiff in O.S.16 of 1980 on the file of Munsiff court, Tirur is the appellant. Defendant is the respondent. Plaint schedule property was allotted to respondent under Ext.A7 partition deed. Under Ext.A7, same extent of property was allotted to Kalyani and Prabhakaran.According to appellant respondent, Prabhakaran and Kalyani agreed to sell their respective plots for a consideration of Rs. 500/- each and respondent executed Ext.A1 agreement and Kalyani executed Ext.A9 agreement and Prabhakaran executed Ext.A10 agreement, for sale after receiving Rs. 150/- as advance towards consideration. It was contended that appellant was alwaysready and willing to perform his part of the agreement and on the failure of respondent to execute the sale deed, appellant sent a notice to respondent as well as to Kalyani and Prabhakaran but they did not execute the sale deeds and therefore appellant instituted O.S.16 of 1980 for specific performance of Ext.A1 agreement against respondent and O.S.15 of 1980 and O.S.17 of 1980 were filed against Kalyani and Prabhakaran. It was contended that respondent is bound to execute the sale deed after receiving the balance sale consideration of Rs. 350/-. A decree for specific performance was sought for. Respondent in the written statement contended that after the partition, appellant agreed to purchase the property for a consideration of Rs. 3,500/- and respondent agreed to sell the property and appellant obtained her thumb impression in a blank stamp paper and at that time nothing was written therein and no witnesses was also signed in it and Ext.A1 agreement was created using that stamp paper. It was further contended that respondent did not agree to sell the property for Rs. 500/- and appellant is not entitled to the decree sought for.

(2.) Learned Munsiff on the evidence of Pws.1 and 2 and DW1 and Exts.A1 to A12 found that O.S.15 of 1980 and O.S.17 of 1980 were also instituted by appellant for specific performance of Exts.A9 and A10 agreements and under Exts.A6 and A11 written statements in those suits, execution of agreements were admitted by Kalyani and Prabhakaran. Learned Munsiff also found that though the case in the written statement was that appellant had agreed to sell the property for Rs. 3,500/-, when examined as DW1, her case was that she only agreed to consider the proposal and there was no agreement and held that case of respondent cannot be believed. Relying on the evidence of Pws.1 and 2 and circumstances of the case learned Munsiff found that Ext.A1 agreement was executed by the respondent and plaint schedule property was agreed to be sold for Rs. 500/- and Rs. 150/- was received as advance towards sale consideration. Holding that appellant was always ready and willing to perform his part of the agreement and time is not the essence of the contract, learned Munsiff granted a decree for specific performance of Ext.A1 agreement. Defendants challenged the decree and judgment before Sub court, Tirur in A.S.19 of 1986. Learned Sub Judge on re- appreciation of evidence found that case is to be appreciated on verification of Ext.A1 agreement. Comparing the thumb impression seen in Ext.A1 with the thumb impressions in the written statement and deposition and appreciating the evidence learned Sub Judge found that Ext.A1 agreement was not executed by respondent and set aside the decree granted by the trial court and dismissed the suit. It is challenged in the second appeal.

(3.) Second appeal was admitted formulating following substantial questions of law.