JUDGMENT :

The 1st defendant is the appellant. The respondent was the plaintiff.

2. The parties as arrayed in the suit are referred to hereinafter, for convenience.

3. The plaintiff claimed the relief of specific performance of the contract under the agreement for sale dated 13.04.1984 against the 1st defendant and her mother.

4. The contention of the plaintiff is that the 1st defendant had agreed to sell the plaint schedule land, which is an extent of Ac.0-60 cents in S.No.175-5 out of Ac.2-76 cents at Turangi village of East Godavari District, to the plaintiff and received Rs.500/- as advance on the date of the agreement itself. It is also the case of the plaintiff that the balance consideration was to be paid on or before 13.08.1984. The plaintiff was always ready and willing to perform her part of the contract and according to her the 1st defendant began to delay in performing her part of the contract that made her to issue a legal notice dated 08.04.1987.

5. The 2nd defendant was also made a party to the suit basing on the contention of the 1st defendant, who claimed that the property covered by the agreement for sale belonged to her.

6. The predominant defence of the 1st defendant is that the plaintiff while entering into the agreement for sale, was informed by her that the plaint schedule property belonged to her mother and that she did not have any right to it, on which the plaintiff took her to confidence stating that she would apprise her mother and make her join in execution of the sale deed. In those circumstances, according to the 1st defendant, believing the plaintiff, she executed the suit agreement for sale on 13.04.1984 and had received Rs.500/- towards advance from her. Further contention of the 1st defendant is that her mother however did not agree to sell this property to the plaintiff, while disputing that there was a demand on her to perform her part of the contract under this agreement for sale. Thus, the 1st defendant questioned the very maintainability of the suit.

7. Basing on the pleadings, the following issues and additional issues were settled:

1. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 13.04.1984 as prayed for?

2. Whether the plaintiff is alternatively entitled for the refund of the advance money paid under the agreement of sale dated 13.04.1984?

3. Whether the defendant is not the owner of the suit schedule property as pleaded by her ?

4. Whether the defendant’s mother is a necessary party to the suit?, and

5. To what relief?

Additional issues framed on 08.10.1990:

1. Whether the 2nd defendant is the owner of the schedule property? and

2. Whether the 1st defendant has no right to execute an agreement of sale in favour of the plaintiff?”

8. At the trial, the plaintiff examined herself as P.W.1 and three other witnesses, while relying on Ex.A1 to Ex.A4 and Ex.X1. Both the defendants examined themselves as D.W.1 and D.W.2 respectively in support of their contention.

9. On the material rejecting the defence and holding that the plaint schedule land was a part of the property given to the 1st defendant by the 2nd defendant at the time of her marriage towards ‘pasupu kumkuma’ and further that the vendor under the agreement for sale cannot set up a defence that she did not have title to its subject matter, the trial Court in exercise of its discretion decreed the suit as prayed directing specific performance of the contract against the 1st defendant and directing her to execute a sale deed in terms of this contract in favour of the plaintiff. However, the suit against the 2nd defendant was dismissed on the ground that there was no privity of contract between the plaintiff and herself nor she is a party to the suit transaction.

10. In the appeal by the 1st defendant, the learned appellate Judge held that the plea relating to ‘pasupu kumkuma’ conferring the plaint schedule property to the plaintiff cannot be accepted, since it is not based on pleadings and on the ground tha