P.V. ASHA, J.

1. Appellant is the 1st defendant in O.S No. 478 of 2007, on the file of the First Additional Sub Court, Thrissur. 1st respondent her in filed the suit against the appellant and his wife who is the 2nd respondent herein, praying for a decree for specific performance of Ext.A1 agreement. On coming to know about the settlement deed executed by the appellant in favour of his wife alienating the plaint schedule property in her name, the plaint was amended as per order in I.A No. 626 of 2009, seeking a declaration that the document No. 902/07 of Sub Registry Office, Thrissur is not binding on the plaintiff or the plaint schedule property and cancelling the document.

2. The suit was decreed declaring that document No. 902/2007 executed between the appellant and the 2nd respondent herein is a sham document not binding on the 1st respondent and directing the 1st respondent to pay the balance sale consideration of Rs. 3,22,500/- to the appellant within 30 days and a further direction to the appellant herein to execute the sale deed in favour of the 1st respondent in respect of plaint schedule property. In the event of the parties refusing to receive the balance sale consideration, the 1st respondent could get the sale deed executed through court by depositing the sale consideration in the court.

3. The case of the plaintiff in the court below was as follows:

The appellant entered into an agreement with the 1st respondent on 3.11.2006, agreeing to sell the plaint schedule property, having an extent of 10.75 cents for a consideration @ Rs. 30,000/- per cent. A sum of Rs.5,000/- was paid as advance on the date of agreement. Thereafter, another sum of Rs.10,000/- was paid on 2.12.2006 and its receipt was acknowledged as per endorsement made on the reverse side of the first page of the agreement. The time fixed for execution of the sale deed was on or before 3.5.2007. He used to request the appellant to execute the sale deed. In the week previous to the filing of suit, the appellant had told him that he has to think about it saying that there was hike in price of property. Even then he assured to bring the documents on 28.4.2007, but did not turn up. Therefore on 30.4.2007 a telegram was sent to him asking him to come prepared for execution of the sale deed on 3.5.2007. The 1st respondent was always ready with the requisite funds and was willing to perform his part of the agreement and he reminded and requested the appellant to execute the sale deed in time. After sending letter and telegram to the appellant, the 1st respondent waited for him in the office of the document writer and office of the Sub Registry. But the appellant did not turn up. When contacted over phone, the appellant told him that the 2nd respondent-his wife took the title deeds and kept it at her house and that she will not permit the sale unless the price is enhanced. The 1st respondent's case was that, the agreement was executed in the presence of the wife and she was aware of all the transactions. She was impleaded since she was aware of all the transactions and for felicitating production of the title deeds in the court. On the above averments a decree for specific performance of the agreement was sought. Subsequently the suit was amended seeking a declaration that the settlement deed executed by the appellant on 21.2.2007 in favour of his wife-alienating the property in her name was not binding on him or the property, saying that the same was intended only to defeat his claim. Since the settlement deed was executed while the agreement for sale was in force, it was not binding on the plaintiff; and the appellant continued to be in possession of the plaint schedule property. Therefore, the settlement deed which was executed fraudulently, was non-est in the eye of law. It was stated that the execution of the settlement deed was likely to create a cloud on the title with respect to the properties and therefore it was necessary to pass a decree cancell