1. The plaintiff in the suit in O.S.No.350 of 2003 on the file of Sub Court, Tuticorin, is the appellant in this Second Appeal.

2. The appellant filed a suit in O.S.No.350 of 2003 for specific performance of an agreement of sale dated 09.05.2002 executed by the first defendant in favour of the plaintiff, by directing the first defendant to execute the sale deed in respect of the suit property and to hand over possession.

3. The case of the appellant in the plaint is as follows:

3.1. The suit property was purchased by the first defendant under a registered sale deed dated 18.08.1999. The first defendant approached the plaintiff to sell the property as the first defendant intended to sell the suit property and to settle in Delhi.

3.2. The first defendant orally agreed to sell the property for a sum of Rs.4,50,000/- and received a sum of Rs.50,000/- on 07.01.2002, Rs.1,00,000/- on 01.03.2002, a sum of Rs.50,000/- on 20.03.2002 and another sum of Rs.50,000/- on 10.04.2002 and finally a sum of Rs.1,00,000/- on 09.05.2002. On 09.05.2002, the plaintiff and the first defendant entered into an agreement of sale in writing.

3.3. As per the agreement dated 09.05.2002, the balance of sale consideration, namely, a sum of Rs.1,00,000/- should be paid on or before 31.12.2002. There was a subsisting mortgage and hence, the first defendant agreed to redeem the mortgage and to sell the property.

3.4. Though the plaintiff was ready and willing to pay the balance of Rs.1,00,000/- and was demanding the first defendant to execute the sale deed upon receipt of the balance amount, the first defendant was delaying the execution of the sale under one pretext or other. Further, he was not available in Pudukottai as he went to Delhi.

3.5. In order to cheat the plaintiff, even before the expiry of the time for performance (31.12.2002), the first defendant colluded with the second defendant and sold a portion of the suit property to the second defendant on 25.09.2002. Knowing this, the plaintiff issued the suit notice on 02.12.2002. The first defendant refused to receive the notice and the second defendant sent a reply on 06.01.2003. Thereafter, the plaintiff caused a paper publication on 04.01.2003. The second defendant in response to the paper publication made another publication refuting the allegations.

3.6. The plaintiff is always ready and willing to pay the balance of Rs.1,00,000/- and to get the sale deed executed. After knowing that the first defendant is likely to sell the suit property to a third party, the plaintiff once again issued a notice on 22.07.2003. Again the first defendant refused to receive the same and ignored the notice. In breach of the agreement of sale, the first defendant without issuing any reply to the plaintiff's notice, executed another sale deed in favour of the second defendant on 29.10.2003. The subsequent sale is fraudulent and sham and nominal. It will not bind the plaintiff. The second defendant has purchased the property knowing fully well the sale agreement in favour of the plaintiff. Hence, the plaintiff is entitled to a decree for specific performance.

4. It is pertinent to mention that though the plaintiff has impleaded the subsequent purchaser namely the second defendant, the relief of specific performance is only against the first defendant.

5. The suit was contested by both the defendants. The first defendant denied the execution of the sale agreement and the receipt of amount as alleged by the plaintiff in the plaint. The first defendant admitted the sale deeds executed by him on 05.09.2002 and 29.10.2003 in favour of the second defendant. The signature of the first defendant in the sale agreement was specifically denied. The second defendant also filed a detailed written statement denying the agreement and the receipt of money in tune with what the second defendant had stated in her reply notice. It was further stated by the second defendant that the payment of amount advanced as alleged by the plaintiff is