IMPORTANT POINT
Nomenclature of document will not alone decide nature of document.

K.L. Manjunath, J.—The legality and correctness of the judgment and decree dated 5-12-2006, passed in O.S. No. 2483 of 1998, on the file of XI Additional City Civil Judge, Bangalore, is challenged in this appeal.

2. Appellants were defendants and respondent was the plaintiff before the Trial Court. For the sake of convenience, the parties would be referred to as per their ranking in the Trial Court.

3. Plaintiff-Basappa - instituted the suit to direct the defendants to execute sale deed for a sum of Rs. 40.00 lakhs in respect of suit schedule property, by receiving the balance sale consideration of Rs. 20.00 lakhs, within the time stipulated by the Court and to put the plaintiff in possession of the property, a residential building situated at No. 23, Gramadevatha Temple Street, Division No. 66, Audugodi, Bangalore, measuring 48+63/2 feet by 85+75/2 feet, totally measuring 4440 sq. ft.

4. According to plaint averments, in a family partition, the suit schedule property had fallen to the share of first defendant and for his legal necessity and for family benefit, defendants, being husband and wife, agreed to sell the suit schedule property for a sum of Rs. 40.00 lakhs on 1-5-1996. By receiving a sum of Rs. 20.00 lakhs as advance sale consideration, executed a registered agreement of sale, registered in the office of the Sub-Registrar, Jayanagar, Bangalore. The defendants further agreed to ‘receive the balance sale consideration of Rs. 20.00 lakhs within three• years from 1-5-1996. Contending that inspite of repeated requests, the defendants failed to execute sale deed by receiving balance sale consideration, the suit came to be filed for specific relief.

5. The suit was contested by the defendants. According to them, the agreement dated 1-6-1996 is forged, concocted created and obtained by the plaintiff by playing fraud committing forgery and impersonation and that the suit is not maintainable. According to them, the suit for specific performance is unenforceable, because of lack of marketable title. It is’ also their case that second defendant did not execute the agreement of sale. She did not appear before the Sub-Registrar to execute the agreement of sale. According to defendants, the mother of first defendant was unwell in the year 1996. She was admitted to hospital. Therefore, the first defendant was in need of money. In the circumstance, first defendant approached one Diwakar, a KAS Officer working in the State Government, and he was ready to advance a loan of Rs. 1.00 lakhs to the first defendant, subject to execution of an agreement of sale as desired by him. Accordingly, under duress and coercion, suit document came to be executed by the first defendant only. The second defendant did not appear before the Sub-Registrar and she has not put her signature on the document and the LTM found on the document is also not that of her. It was also contended that the agreement is only a document executed by the first defendant as security for due repayment of the loan of Rs. 1.00 lakh borrowed from Diwakar and there is no privity of contract between the plaintiff and the defendants and prayed for dismissal of the suit.

6. The second defendant filed written statement separately, which is replica of the written statement filed by the first defendant. She contended that she has not executed any agreement of sale and she has not appeared before the Sub-Registrar and some one has impersonated her.

7. Based on the above pleadings, the Trial Court framed the following issues:

(1) Whether the plaintiff proves that the defendants agreed to sell the suit property for a consideration of Rs. 40 lakhs and executed an agreement of sale dated

1-5-1996?

(2) Whether the plaintiff proves that he has paid advance sale consideration of Rs. 20 lakhs to the defendants?

(3) Whether the plaintiff proves that he has been ever ready and willing to perform his part of contract?

(4) Whether the plaintiff proves that he is entitled to the sp