An incomplete contract cannot be specifically enforced, and the plaintiff must come to court with clean hands to seek the discretionary remedy of specific performance.

1. The second appeal arises from a suit for specific performance of a contract for sale. First defendant is the appellant herein. The suit O.S.124/84 before Sub Court, Sherthallai was filed by first respondent herein (hereafter referred as plaintiff) against appellant (hereafter referred as first defendant) and one Gopalakrishnan Nair who remained ex parte in the suit. Plaint alleges thai first defendant had agreed to sell the plaint schedule properly to plaintiff for a total consideration of Rs. 14,000/-. An agreement was entered into on 8-11-1982. An amount of Rs.7,750/- was paid as advance towards purchase price and the balance was agreed to be paid within three months. On knowing about the intended sale to second defendant from a suit was filed by plaintiff before Munsiff's Court, Sherthallai as O.S. 608/82 to restrain first defendant from alienating the property. Thereafter a notice was sent asking first defendant to execute the assignment deed. She having failed to perform her part of the contract plaintiff was constrained to file the suit.

2. First defendant denied the execution of the document and receipt of the advance. She therefore disclaimed liability to execute the sale deed. She further contended thatan agreement was entered into between the 2nd defendant and herself. The trial court on an appreciation of the evidence held the agreement Ext.A2 alleged to have been executed by the first defendant to be not genuine. In consequence the suit was dismissed. On appeal the lower appellate court reversed that decision and held that the document is genuine. It was further found that first defendant was having absolute rights over the properly. The appellate court directed the first defendant to execute an assignment deed in respect of the plaint schedule property after receiving the balance consideration. It is against that decision that first defendant has come up in second appeal.

3. The following substantial questions of law arc seen formulated in the appeal memorandum.

i. When the contract for sale states that the property belongs to the 'sakha' of 1st defendant and her four named children will a suit for specific performance lie against the 1st defendant only?

ii. When Ext.A2 states that the property belongs to the sakha of 1st defendant and her 4 children can specific performance be granted against the 1st defendant, treating the 1st defendant alone as the owner?

iii. When Ext.A2 is purported to be entered into by 1st defendant and 4 named children and those children have not signed Ext. A2, can it be construed as a completed contract capable of enforcement?

iv. In the absence of any ease that 1st defendant had been acting on behalf of her children also, when the property is alleged to belong to them also in the contract for sale, can specific performance be granted against the 1st defendant alone and that too without the children on the party array?

v. When Ext.B1 and B2 copies of Ext. A2 served by plaintiff on 1st defendant differ in material particulars, is it not a strong telling unassailable circumstance militating against the genuineness of Ext.A2?

vi. Is the 1st appellate court entitled to disturb a finding of fact in the absence of circumstances that escaped the notice of the trial court which could warrant a different conclusion?

vii. Is not the court bound to consider the equities and circumstances and the conduct of the plaintiff before exercising the discretion to grant specific performance?

Notice was ordered on these questions of law.

4. Heard counsel on both sides.

5. One of the substantial questions of law raised by learned counsel for the appellant is that the agreement Ext.A2 being an incomplete contract the court below should not have permitted enforcement of the same. The agreement was intended to be executed by first defendant and her four children, Gangadharan Nair, Sasidharan Nair, Hariharan Nair and Jalajakumari. But it was executed by first defendant alone. The children of first defendant di