NAILA ABDUL NAZAR Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) The court below has again decreed the suit for specific performance pursuant to the order of remand in A.S. No. 24/2000 by this court and the first defendant has come up in appeal. A quarter century has elapsed since the execution of the agreement for sale and the matter has to be given a quietus one way or the other. We heard Mr. T.O. Xavier, Advocate on behalf of the appellant and Mr. V.V. Asokan, Senior Advocate and Mr. K.C. Eldho, Advocate on behalf of the respondents.

(2.) The subject matter of the suit is a shop room bearing Door No.38/941 with rights over the common staircase, water tank etc. in the ground floor of a three storied building. The building houses many shop rooms on a land purchased in the name of defendants 1 to 3 (under sale deed No.3039/1982) by their maternal grandfather. It appears that their father constructed the building with an intention that each floor should go to defendants 1 to 3 separately. Ext.A4 agreement was later executed with a 'declaration' that the ground, first and second floor would belong to defendants 1, 2 and 3 respectively. The third defendant being a minor was represented by her father as the guardian in Ext.A4 agreement executed after the construction of the building.

(3.) The first defendant subsequently entered into Ext.A1 agreement for sale in respect of Shop room No.38/941 with the plaintiff for a consideration of Rs. 5,50,000.00. It is explicitly stated in Ext.A1 agreement that the first defendant derived title to the shop room under Ext.A4 agreement for partition. Ext.A1 agreement for sale has sanctity only if the first defendant derived title to the shop room under Ext.A4 agreement for partition which is unregistered. The land was purchased jointly in the names of defendants 1 to 3 who however had no pre-existing title over the building constructed by their father.