( 1 ) THE unsuccessful second defendant has preferred this appeal against the judgment and decree dated 2-7-1991 passed by the learned Subordinate Judge, Anakapalli in o. S. No. 259 of 1984. The first respondent herein is the plaintiff and respondents 2 and 3 are the defendants 1 and 3 respectively in the suit. It is expedient to refer the parties as they are originally arrayed in the suit to avoid confusion.

( 2 ) THE plaintiff filed the suit for specific performance of the agreement of sale dated 19-2-1984 by directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiff after taking the balance of sale consideration of Rs. 90,000. 00 and for delivery of possession of the suit schedule property and in the alternative for refund of an amount of Rs. 10,000. 00 paid as advance by the plaintiff with interest.

( 3 ) THE case of the plaintiff was that the 1st defendant being the owner of the terraced house and the appurtenant site (Suit house), offered it for sale representing that he got absolute title over the same and none-else and the plaintiff agreed to purchase the same after having made due enquiries and the bargain was settled at Rs. 1,00,000. 00. The 1st defendant executed the sale agreement dated 19-2-1984 in favour of the plaintiff who paid an amount of Rs. 10,000. 00 as advance under the said document. The 1st defendant agreed inter alia in the suit contract of sale to receive the balance of sale consideration on or before 20-6-1984 and to execute the registered sale deed in favour of the plaintiff or to his order by undertaking to get it attested by his daughters. He further undertook to deliver the possession of the suit house on the date of the execution of the sale deed. The second defendant is the wife of the 1st defendant and she knew about the execution of the sale agreement in favour of the plaintiff by the first defendant. The plaintiff made ready the balance of sale consideration and registration expenses and demanded the 1st defendant to execute the registered sale deed in his favour. However, the first defendant was postponing the execution on some pretext or the other. In the meanwhile, the 1st defendant on the instructions of the second defendant got a registered lawyer s notice dated 24-3-1984 issued to the plaintiff with all untenable allegations so as to extract more money from the plaintiff. The plaintiff through his advocate got a suitable reply issued dated 28-3-1984 to the above said notice. Simultaneously, the plaintiff got another notice dated 30-3-1984 issued to the 1st defendant through his lawyer demanding specific performance of the suit contract of sale. The first defendant having received the same got a reply notice dated 23-4-1984 issued through his counsel with untenable allegations. The plaintiff was always ready and willing to perform his part of contract as per the terms of the agreement.

( 4 ) THE case of the first defendant inter alia in the written statement was that the suit house property was the ancestral property of the first defendant and that he had a son by name Appala Suryanarayana Murthy who died in the month of March, 1961 and therefore, the half share in the suit property of late Appala Suryanarayana Murthy devolved on the second defendant and the first defendant and the second defendant have been thus enjoying the suit house property as tenants in common. Therefore the 1st defendant has no absolute title to the entire suit house. The plaintiff knew that the 1st defendant has a son and that the said son died in the month of March 1961. The first defendant admitted the execution of the suit contract of sale and received an amount of rs. 10,000/- towards advance, but denied the case of the plaintiff that he undertook to get his daughters and make them to attest the sale deed and to deliver possession of the property on the date of execution of the sale deed. He further denied the allegation of collusion between defendants 1 and 2 and ge