Judgment

VAIDIALINGAM, J. : This appeal by the plaintiff on certificate, is directed against the decree and judgment dated Janauray 14, 1965 of the Kerala High Court in A. S. No. 655 of 1961 reversing the decree of the trial court and dismissing the appellant s suit for specific performance.

2. The deceased first defendant had obtained from her father under a Stridhanakuri Ex. P. 2 dated July 14, 1906 a parcel of land bearing survey No. 8583A/2 of Quilon village of an extent of 13.625 cents.

3. The first defendant had put up shops on a part of the land and was enjoying the property. She had become liable to any certain decree debts under the decree evidenced by Exs. P. 18 and P. 19 dated March 30, 1954 and August 22, 1955 respectively. To discharge these decree debts the first defendant had usufructuarily mortgaged under Ex. P. 16 dated January 8, 1957 the properties obtained by her under Ex. P. 2. At this stage it may be mentioned that in Ex. P. 16 the first defendant had referred to her having obtained tittle to the properties under Ex. P-2, the Stridhanakuri, which had been registered as document No. 4286 of 1081 (M. E.) on the file of the Sug-Registrar, Quilon. There is a further recital that the original tittle deed is lost and as only a copy has been given to the mortgagee. We are particularly referring to this aspect as these recitals may have a bearing in considering the claim of the plaintiff that he got the original document Ex. P. 2 on the date of the agreement in his favour Under Ex. P. 4 dated March 5, 1959, the first defendant sold from and out of the properties obtained by her under Ex P. 2 to the wife of the second defendant an extent of 3.58 cents being the front portion of the property for Rs.18,000/-, By this sale she discharged an the liabilities over the properties and the mortgage Ex. P. 16 was also discharge Schedule A to Ex. P. 4 comprises of the items actually sold to the second defendant s wife. Schedule B to Ex. P. 4 comprised of suit properties to the extent of 9 cents and 797 sq. links and they were given as indemnity to the vendee undo Ex. P. 4 .

4. According to the plaintiff the first defendant entered into an agreement Ex. P. 1 on March 28, 1959 in and by which she agreed to sell the suit properties for a sum of Rupees 25,000/-. In this agreement the registered document number of Ex. P. W. 2 was given as 4442 of 1081 (ME) on the file of the Sub-Registrar, Quilon. The first defendant agreed to complete the sale within 45 days and also to furnish the plaintiff with a certified copy of the encumbrance certificate. The plaintiff also claimed to have paid a sum of Rs. 1001/- as advance. There is a definite recital in Ex. P. 1 that there is no encumbrance or liability outstanding on the suit properties. The attestors to this document are P. W.1 (who is also the scribe), P. W. 2, the broker, and P. W. 8, son-in-law of the first defendant.

5. According to the plaintiff, the first defendant was evading to complete the transaction which necessitated the issue of the notice dated April 29,1959 calling upon her to receive the balance amount and execute the sale deed. This was followed by a publication in a Vernacular paper dated May 9, 1959 evidenced by Ex. P.13. On behalf of the first defendant a reply Ex. P.12 dated May 9, 1959 was received wherein the first defendant repudiated the agreement Ex. P.1. The first defendant also set up an agreement dated March 26, 1959, Ex. D. 2 in favour of the second defendant. She also replied that the said agreement had been followed up by the execution of a sale deed in favour of the second deferdant Ex. D.3 on May 9, 1959. According to the plaintiff Ex. D. 2 is an ante- dated document brought into effect to defraud the rights of the plaintiff and that the second defendant had taken both the agreement Ex. D. 2 and the sale deed Ex. D. 3 with full knowledge of the prior agreement in favour of the plaintiff and hence the second defendant was not a bona fide purchaser.

6. On