Discretion exercised open to review in second appeal.

The plaintiff, whose suit for specific performance of a contract for sale of land belonging to the 1st defendant was decreed by the trial Court but dismissed on appeal, has preferred this second appeal. The 1st defendant is the wife of the 2nd defendant. Under Ex. P-1 dated nth October, 1943, in the handwriting of the husband and bearing the thumb impressions of the wife, two plots of land belonging to the wife were agreed to be sold to the plaintiff for Rs.1,750 out of which a sum of Rs.150 was recited as having been paid in advance. The time for completion of the conveyance and payment of the balance of the price was fixed at one month from the date of the contract and it was provided that an encumbrance certificate should be furnished by the vendor to the purchaser before the execution of the conveyance. The plaintiff alleged that on 22nd October, 1943, the title deeds of the property were handed over to him, that the tenant of the land was also made to attorn to him and that he purchased stamp papers and had the conveyance engrossed thereon, but the defendants acting in concert evaded performance of the contract and eventually resiled therefrom. The plaintiff averred that he was ready and willing to perform his part of the contract and prayed for specific performance or for damages in the alternative in the sum of Rs.1,200. He deposited in Court Rs.1,600, the balance of the purchase money along with his plaint. The 1st defendant denied that she entered into the contract Ex. P-1 or received the advance of Rs.150, or promised to furnish an encumbrance certificate. She denied all knowledge of the delivery of the title deeds of the land or of the attornment by the tenant to the plaintiff or of the purchase of stamp papers and the engrossing of a conveyance thereon. She alleged that her husband took her thumb impressions to a paper representing that it was required for effecting a sale of the groundnut crop on the land for Rs.150 and that even that sum had not been paid to her. Her case was that there was some temporary estrangement between her and her husband at the time of the contract and that the agreement Ex.P-1, if true, must have been brought about by the plaintiff, and her husband in collusion with each other for the purpose of defrauding her of her properties.

The learned District Munsiff discredited the story of the defendants His findings are as follows: Ex. P-1 was written by the husband in his own hand and the thumb impressions of the wife were affixed on both pages after Ex. P-1 had been written. The plea that the thumb impressions were taken to a blank paper was untrue. A sum of Rs.150 was paid as advance on the date of Ex. P-1 . The story of a temporary estrangement between the husband and his wife who had presented him with seven children, of whom the last was a baby a few months old was untrue and a pretence. The husband and wife were living amicably in the same house throughout. The husband was a shopkeeper and the wife a shrewd and intelligent lady, who understood the contents of Ex. P-1 before affixing her thumb impressions thereto. The wife’s story of a sale of a groundnut crop which was worth only Rs.40, for Rs.150 and the execution of some document in connection with the sale of the crop was untrue. The title deeds of the lands were handed over to the plaintiff by the husband. The tenant of the land was also made to attorn to him. The husband had arranged for the purchase of the suit lands for his wife under Exs. P-1 and P-3 (a) for Rs.235 and Rs. 300 in 1941 and 1942. He had also been looking after the cultivation of the land by the tenant and realising the produce. The husband did not induce the wife to affix her thumb impressions to Ex. P-1 on any misrepresentation as to its contents The wife resiled from the contract after consultation with her mother and evaded performance. The husband has been acting in the interests of the wife both in entering into the contract and in resiling therefrom.