The first defendant in O.S.No.1 of 1990 on the file of the Court of III Additional District Judge, Kakinada is the appellant herein. The suit was filed for specific performance of the contract of sale dated 30-04-1981 executed by the first defendant free of the mortgage said to have been created by the first defendant in favour of the second defendant.

The allegations in the plaint goes to show that the schedule property, which is an extent of Ac.5.85 cents of land, belongs to the first defendant and she agreed to sell the property for a consideration of Rs.78,000/- on 30-04-1981 and received a sum of Rs.40,000/- and the possession was delivered. The time for payment of the balance amount of Rs.38,000/- was fixed as one month i.e., before the end of May 1981. The first defendant undertook to discharge the debts owed by her to the L.M.B and thereafter undertook to give the title deeds relevant to the schedule property and the possession of the property was delivered in part performance of the contract. Subsequently, on 27-10-1981 the plaintiff paid to the husband of the first defendant a sum of Rs.33,860/- towards balance of sale consideration and he endorsed on the back of the agreement. He represented that the first defendant is not available and therefore he has acted on her behalf. In the first week of November 1981 a sum of Rs.4140/- was paid in full payment of the balance of the sale consideration and also a sum of Rs.2,000/- towards interest. The plaintiff was always ready and willing to perform his part of the contract and the first defendant has not fulfilled the obligation to discharge the loan to the land mortgage bank and to deliver the title deeds. As the first defendant avoided, a legal notice was given and the first defendant gave a reply with false allegations and pleading that the plaintiff is a tenant of the schedule property and on the date of suit agreement it is issued a only a sum of Rs.4,000/- as advance of the rent and the plaintiff wanted some documents and she signed on the papers. The second defendant is a subsequent alienee after the suit agreement in whose favour a mortgage has been created and filed a suit O.S.No.357 of 1993 and proceeding in execution. Therefore, the defendants are liable for the specific performance of the contract or in the alternative for a refund of the sale consideration of Rs.78,000/-.

The first defendant filed a written statement denying the allegations in the plaint about the contract of the sale and receipt of the consideration. The defendant never executed the alleged agreement of sale. The possession of the plaintiff in the suit schedule property is only as a tenant not as a purchaser. It was further pleaded that the plaintiff was cultivating the land on an annual maktha of 90 bags of paddy and Rs.5000/- as cash for the usufruct of the trees payable by 15th January on every year. During 19811982 the husband of the first defendant suffered from heart attack and was ill. On 30-04-1981 the plaintiff paid a sum of Rs.4000/- to the defendant towards the advance of maktha. The husband of the first defendant was taken to the hospital of Dr.Jagannadham and Venkata Prasad of Kakinada with the assistance of Dr.S.V.Ramayya and the plaintiff and one S.Jagga Rao accompanied them. Further, it is averred in para.10 of the counter-affidavit as follows:-

“At the residence of Dr.Jagannadham and Venkata Prasad the defendant asked the plaintiff to give the amount he brought. The plaintiff brought two stamp papers of worth Rs.3/- and Rs.2/- each and insisted for the signatures of the defendant and that of her husband on those blank stamps. Due to heart trouble the husband of the plaintiff and due to anxiety the defendant were not able to resist the plaintiff and out of anxiety they signed on those two blank stamps as directed by the plaintiff. The plaintiff representing that he required some document as he is the cultivating tenant, having possession of the suit schedule property,