The main legal point established in the judgment is that ExtA1 agreement was enforceable against defendants 1 to 3 and defendants 4 and 5, and the covenant in ExtA1 was enforceable against defendants 4 and 5 under S.11 and S.40 of the Transfer of Property Act.

Manoharan.

These appeals arise from the judgment and decree in O.S.No. 33 of 1985 on the file of the Court of the Subordinate Judge of Kottayam, a suit for specific enforcement of ExtA1 agreement. Appellants in AS. 472 of 1986 are defendants 4 and 5, and appellants in AS.1 of 1987 are defendants 1 to 3.

2. The facts for the purpose of these appeals can be summarised as follows:-

Defendants 1 and 2 obtained 24 cents as per a settlement, out of which on 1-1-1982 they conveyed 19.509 cents on the north with a building to defendants 4 and 5 as per Ext.B1 sale deed and Ext. B15 release deed. They executed Ext.A1 agreement to sell the southern 4.491 cents with six shop rooms to the plaintiffs for a total consideration of Rs. 3,20,633/- out of which on the date of Ext. A1 Rs. 50,000/- was paid as advance; Rs. One lakh had to be paid on 30-6-1984; and sale deed had to be got executed on or before 15-9-1984 on payment of the balance consideration. There was stipulation in Ext. A1 to the effect, if on account of the default of the plaintiffs, the sale deed is not executed within the said date the amount paid as advance would be forfeited. ExtA1 also provided that the sale would be executed incorporating provision for the use of the corridor between the said rooms and also the stair case to go to the first floor. As per the stipulation in Ext. A1 Rs. One lakh was paid to defendants 1 and 2 on 30-6-1984. The plaintiffs alleged that, they were ready and willing to perform their part of the contract and that they sent a notice on 5-9-1984 expressing their readiness and willingness to take the sale deed as per the agreement. Defendants land 2 sent a telegram on 14-9-1984 intimating that they would be present at Changanacherry to execute the sale deed. According to the plaintiffs, though plaintiffs and defendants 1 and 2 were present at the Registry, defendants 1 and 2 said that they are not in a position to execute the sale deed since defendants 4 and 5 refused to remove the obstruction created by them in the corridor by putting up a shutter at the entrance. They also informed that they have already sent the original of Ext. A-20 lawyer notice on 16-7-1984 to defendants 4 and 5 calling upon them to remove the obstruction and they agreed to execute the sale deed after removal of the said obstruction. Pursuant to the same, according to the plaintiffs, defendants 1 to 3 executed Ext. B-3 power of attorney in favour of the 3rd defendant, the father of the second defendant on 15-9-1984 itself authorising him to take appropriate steps and to execute the sale deed. The 3rd defendant as power of attorney instituted Ext. A-11 suit against defendants 4 and 5 for removal of the obstruction and for other reliefs. The plaintiffs alleged, while the suit was pending, defendants 1 to 3 colluded with defendants 4 and 5 and executed Exts. B6 to B-14 sale deeds in favour of defendants 4 and 5 in breach of Ext. A1, and later they compromised the suit. Therefore, the plaintiffs claimed they are entitled to specifically enforce Ext. A1. According to them since defendants 4 and 5 are not transferees for value without notice, they are entitled to have Ext. A-1 enforced against them also.

3. Defendants' 1 and 2 though admitted the execution of Ext.A1 agreement and receipt of the advance as well as the payment of Rs. One lakh on 30-6-1984, contended that plaintiffs were not willing and ready to have the sale deed executed on 15-9-1984. They also contended that Exts. B6 to B-14 sale deeds are supported by consideration and good faith. According to them defendants 4 and 5 did not have notice of Ext. A1. Defendants 4 and 5 contended that the breach was committed by the plaintiffs, and that Exts. B6 to B-14 sale deeds are supported by consideration and good faith. They maintained that they were not aware of Ext. A1 agreement. According to them Ext. A1 cannot be enforced against them and the reservation of the right to use the corridor is not enforceable in law.

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