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Judgment
Nainar Sundaram, J.—The question that presented difficulty to the learned Judge of this Court and which obliged them to refer the same to a
Full Bench concerns the legal propriety of the plaintiff, who sued for specific performance of a contract of a sale and who also, in the same suit,
asked in the alternative, for the relief of refund of earnest money or advance money, paid under the contract of sale, preferring an appeal against
the judgment and decree of the first Court, which granted him only the relief of return of the earnest money or advance money, on denying him the
relief of specific performance. There are two pronouncements, both of Division Bench of this Court: One in Sakku Bai Amman Vs. R. Babu
Reddiar and Others, and the other in Senniappa Gounder v. V.K. Venkataraman, (1981) 94 MLW 591. The earlier Bench expressed the view
that when the plaintiff asked for reliefs in the alternative, he places such reliefs on par with each other and he makes an election even threshold,
leaving entrely the grant of the one or the other of the reliefs to the Court and after the grant of one such alternative relief, he is not an aggrieved
person, who could carry the matter to the higher Court for the grant of that relief, which was not given by the first Court. The latter Division Bench,
however, opined that the proper test to he applied is whether there is any inconsistent intention or conduct on the part of the appellant to
approbate the judgment, appealed against, by taking a benefit therefrom and to reprobate the judgment by appealing against it. There are two
pronouncements of the Supreme Court; one in Bhau Ram v. Baij Nath Sing. AIR 1961 SC 1327 and the other Ramesh Chandra Chandiok v.
Chumilal Subharwal, AIR 1971 SC 12.18 We will presently advert to these pronouncements. There seems to be an opinion and understanding
about these pronouncements that they do not lend support to each other.
The law relating to specific performance of contracts stands codified. Chapter II of the Specific Relief Act 47 of 1963, hereinafter referred to as
the Act, sets down the provisions governing specific performance of contracts. For our purpose, S. 22 of the Act is relevant and it stands
extracted as follows :--
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a
contract for the transfer of immovable property may in an appropriate case, ask for-
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for
specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed;
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the
plaint on such terms as may be just for including a claim for such relief.
(3) The power of the Court to grant relief under clause (b) of ""sub-section (1) shall he Without prejudiced to its powers to award compensation
u/s 21.
We are not concerned with clause (a) of subsection (1) thereof. The reliefs thereunder are in addition to specific performance. We are concerned
with clause (b) of sub-section (1), which speaks about the alternative reliefs the plaintiff could ask for. The alternative reliefs would include the
refund of any earnest money or deposit paid or made by the plaintiff. The grant of the alternative relief would arise only in case the plaintiff''s claim
for specific performance is refused. When the plaintiff asks for the alter native relief, there is no legal presumption or assumption that he gives up
the main or primary relief of specific performance of the contract. The plaintiff primarily wants the relief of specific performance of contract and
pleads that in case that primary relief is to be refused he should be granted the alternative relief. It does not mean that when the primary relief is
denied to the plaintiff, he could not be stated to be an aggrieved person in respect of the decree of the first Court, denying him that relief on the
reasoning that he has obtained the alternative relief. The remedy of an appeal is of course open only to a person aggrieved by an order or decree
of the first court. As to when a person could be stated to be an aggrieved person, so as to clothe him with the right of appeal, the rights conferred
have got to be understood only in the context of the statute, which confers them. The decision of the first Court, in so far as it negatives the primary
relief of specific performance, is materially adverse to the plaintiff. In other words, he has been denied or deprived of something to which,
according to the plaintiff, he is entitled to. Viewed in the above light, certainly, an appeal, by a plaintiff obtaining only the alternative relief of refund
of the absent money or advance money, and who has been denied the relief of specific performance is a competent appeal. In so far as the first
Court denied him the relief of specific performance, the plaintiff must be held to be an aggrieved person. There could be an exception and that is
where the plaintiff has acted or conducted himself in such a manner as to approbate the benefit thereunder and in such a case, he cannot be
permitted to reprobate the judgment by appealing against it. This principle has been taken note of by the latter Division Bench in Senniappa
Gounder v. V. K. Venkataraman, (1981) 94 Mad LW 591 We find that in the earlier Division Bench, though there are categoric expressions
indicating a contrary position, yet the discussion of the facts does indicate that the plaintiff was desirous of taking the benefit under the decree and
tried, if possible, to challenge the other portion of the judgment, which is prejudicial to him.
Coming to the pronouncements of the Supreme Court, after going through them, we find practically there is no conflict between the two. In
Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327 it was a case of a suit, instituted by the plaintiff for the endorcement of, the right of pre-emption
and the trial Court dismissed the suit- But, on appeal, it was decreed. There was an appeal to the Supreme Court by the defendant and there was
a preliminary objection raised by the plaintiff, that the defendant was precluded from proceeding with the appeal on the ground that by withdrawing
the preemption price he must be deemed to have accepted the decree and that he could not Heard to say that the decree was erroneous. In that
context, it was observed that unless the party had so conducted himself as to make restitution impossible or inequitable, the principle of approbate
and reprobate would not apply. In R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, , the same principle found expression in a
slightly different language and it was observed that the appellant could not accept satisfaction of the decree of the Trial Court and yet prefer an
appeal against that decree.
Hence we answer the quest ion, referred to us, as we have done above. Any observation found in Sakku Bai Amman Vs. R. Babu Reddiar and
Others, , running contrary to what we have expressed above, stands overruled. The references are answered accordingly. The Appeals will have
to go before the learned Judge or Judges, who should hear it or them on merits. We make no order as to costs.
Final order (by Siasubramaniam J. on 27-10-1989) :--
This regular appeal is directed against the judgment and decree in O.S. No. 56 of 1974 on the file of the learned Principal Subordinate Judge,
Dindigul. The appellant is the plaintiff and the respondents are the defendants in the suit.
The material averments contained in the plaint filed by the appellant plaintiff are as follows :
The first defendant is admittedly the owner of the suit properties. He borrowed from the plaintiff a sum of Rs. 21,500/- by creating an othi over the
suit properties on 14-11-1968. Possession of the suit properties had also been delivered to the plaintiff in pursuance of the othi. Thereupon, the
plaintiff and the first defendant entered into an agreement for sale of the suit properties for a consideration of Rs. 45,500/- by means of a written
agreement on 6-10-1973. The terms and conditions inter alia of the agreement are adjustment of a sum of Rs.2000/- already received by the first
defendant from the plaintiff on 1-4-1973, receipt of a sum of Rs. 3,000/- as advance on the date of the agreement viz., 6-10-1973, a sum of Rs.
5,000/- to be paid by the plaintiff to the first defendant on or before 19-10-1973 and the adjustment of othi amount of Rs. 21,500/- from out of
the sale price. The plaintiff has to pay the balance of the sale consideration of Rs, 14,000/- within a period of three months from the date of the
agreement and not the sale deed executed by the first defendant at her expense. In case of default on the part of the first defendant, the plaintiff is
at liberty to deposit the balance of sale consideration and get the sale deed executed by the first defendant at the latter''s expense. In case of
default on the part of the plaintiff, the advance amount of Rs. 5,000/-paid by her will be forfeited. The plaintiff paid the sum of Rs. 5,000/- to the
first defendant on 19-10-1973 and obtained a receipt therefore. The first defendant received a further sum of Rs. 1000/- from the plaintiff on 30-
12-1973 and made on endorsement therefore in the agreement on 6-10-1973 and extended the period for completion of the sale deed by six
months i.e. till 30-6-1974. The plaintiff is thus entitled to specific enforcement of the agreement for sale of the suit properties by payment of the
balance of sale consideration of Rs. 13,000/-. The first defendant informed the plaintiff by telegraphic message on 11-2-1974 that he was ready
and willing to execute the sale deed on 11-2-1974 and asked the plaintiff to meet him at the Sub-Registrar''s Office on that day as otherwise the
agreement would be cancelled. The plaintiff sent a reply telegram on 9-2-1974 expressing her readiness and willingness to perform her part of the
contract. She also sent a registered notice to the same effect. The first defendant repudiated the contract by means of a belated reply. The first
defendant has committed breach of the contract. Subsequently, the plaintiff came to know that the first defendant was making arrangements to sell
the suit properties to the fourth defendant for a higher price. The plaintiff sent a telegraphic notice to the first defendant on 23-2-1974 objecting to
the proposed sale. The fourth defendant was also thereby informed not to purchase the suit properties as the agreement in her favour is subsisting.
The first defendant sent a notice that he had sold the properties to defendants 2 and 3 on account of compelling circumstances. Defendants 2 and 3
are the sons of the fourth defendant. They constitute members of an undivided Hindu Joint family. The fourth defendant has arranged the sale
transaction in favour of his sons. Defendants 2 and 3 are not bona fide purchasers for value without notice of the sale arrangement in favour of the
plaintiff. The sale deed in favour of defendants 2 and 3 is not valid and it will not affect the rights of the plaintiff. The plaintiff was always ready and
willing to perform her part of the contract. It is only the first defendant who is guilty of laches.
The first defendant resisted the suit and filed a written statement and an additional written statement raisint the following contentions :-
He admitted the agreement of sale. The landed property comprised in the agreement is in the possession and enjoyment of the plaintiff as
usufructuary mortgagee. The first defendant was involved in debts. He was making arrangements to sell the land to discharge his debts. On coming
to know of it the plaintiff approached the first defendant to convey the land to her. The plaintiff and the first defendant entered into an agreement
for sale of the suit properties on 1-4-1973 fixing a period of six months from thence for complating the sale transaction. The plaintiff was not ready
and willing to complete the sale transaction on or before 1-10-1973. The plaintiff approached the first defendant and pleaded for time togather
money for com-plating the said transaction within a couple of months. Taking into consideration the possession of the land by the plaintiff as
othidar, the first defendant agreed to enter into afresh agreement on 6-10-1973. Even then the plaintiff was not ready and willing to complete the
agreement for sale on or before 6-1-1974. The plaintiff paid Rs. 1,000/- on 30-12-1973 and wanted some more time for carrying out the
agreement. The first defendant insisted that the balance of sale consideration should be paid before the end of February as he was hard pressed for
money for discharging his debts. The plaintiff agreed to do so. However, an endorsement was made on the agreement fixing a period of six months
for implementation of the agreement. It was only a formal endorsement. The first defendant had not in fact agreed to the said period. The ''creditors
of the first defendant were pressing him for return of the moneys. The first defendant approached the plaintiff in person who postponed the
payment of the balance of sale consideration on some pretext or other. The first defendant, therefore, sent a telegram to the plaintiff on 9-2-1974
asking her to pay the sale price on 11-2-1974. The first defendant waited at the office of the Sub-Registrar for the plaintiff, but in vain. The first
defendant learnt from the notice sent to him by the plaintiff that she was not quite ready and willing to complete the transaction. The first defendant
never agreed to wait will 30-6-1974 for completing the transaction. The plaintiff was unnecessarily delaying the matter resulting in hardship to the
first defendant. As such the first defendant conveyed the suit properties to defendants 2 and 3 for valuable consideration. As per the terms of the
agreement, the plaintiff has to deposit the balance of sale consideration in the Sub-Registrar''s Office and set the sale deed compulsorily registered
and to charge the expenses incurred therefore against the deposit amount in case the first defendant fails to perform his part of the contract. The
plaintiff has not done so. She is therefore, not entitled to file this suit. The plaintiff was never ready and willing to perform her part of the contract.
She has unreasonably delayed the matter for want of resources.
Defendants 2 and 3 filed a separate written statement stating that defendants 2 to 4 are divided members of the family and that they were not
aware of the agreement for sale entered into between the plaintiff and the first defendant. They further contended that they have purchased the suit
properties from the first defendant for a consideration of Rs. 46,000/- under the registered sale deed dated 27-2-1974. They claimed to be the
bona fide purchasers for value without notice of the said agreement of sale.
The fourth defendant also filed a separate written statement stating that he is an unnecessary party to the suit and that defendants 2 and 4 are
divided members of the family. He pleaded ignorance about the sale of the properties in favour of defendants 2 and 3.
The learned Subordinate Judge raised the necessary issues arising on the pleadings of the parties. The learned Judge, on a consideration of the
oral and documentary evidence let in by the parties. Decreed the suit in favour of the plaintiff for the alternative relief of recovery of only a sum of
Rs. 11,000/- from the first defendant and dismissed the suit in other respects. He found that the plaintiff was not ready find willing to prefer her part
of the contract, and therefore, she is not entitled to the relief of specific performance. Aggrieved against the said decision, the plaintiff has filed the
present appeal both for the main relief of specific performance and in the alternative for damages, for breach of contract, besides refund of the
amount.
Originally, this appeal came before Singaravelu, J., for final disposal. Respondents 2 and 3 raised a preliminary objection stating that as per the
ruling of a Division Bench of this Court reported in Sakku Bai Amman Vs. R. Babu Reddiar and Others, , the plaintiff cannot ask for the main relief
of specific performance, having obtained the alternative relief and that, therefore, the appeal in respect of the main relief of specific performance is
not maintainable. The learned Judge noticed that the Supreme Court in R.C. Chandiok and Another Vs. Chuni Lal Sabharwal and Others, , took a
different vie wand, therefore, he was of the view that the judgment of the Division Bench in Sakku Bai Animal''s case runs counter to the judgment
of the Supreme Court cited above. Therefore, the matter was referred to a Full Bench along with some other similar cases. A hull Bench of this
Court went into this matter and held that an appeal by a plaintiff obtaining only the alternative relief of refund of the earnest money or advance
money, and who has been denied the relief of specific performance, is a competent appeal and that insofar as the first Court denied him the relief of
specific performance, the plaintiff must be held to be an aggrieved person. Therefore, they answered the reference stating that any observation
found in Sakku Bai Animal''s case running contrary to what the Full Bench has expressed, stands overruled. Therefore, this appeal comes before
me for final disposal on merits.
The following points would arise for determination in this appeal :--
Whether the appellant/plaintiff is entitled to specific performance of the agreement for sale of the suit properties?
Whether the plaintiff/ appellant is ready and willing to perform her part of the contract?
Whether respondents 2 and 3 (defendants 2 and 3) are bona fide purchasers for value without notice of the agreement of sale in favour of the
plaintiff.?
Points 1 and 2 : The present suit for specific performance is based on the agreement of sale entered into between the plaintiff and the first
defendant on 6:10-1973, Ex. A.2. The plaintiff has claimed the alternative relief for the refund of the advance amount of Rs. 11,000/- as well as
damages on the ground that the first defendant has committed breach of contract by conveying the properties in favour of defendants 2 and 3. The
first defendant has not disputed the said agreement of sale. He has also admitted the receipt of various moneys alleged to have been paid by the
plaintiff. The principal contention raised by the first defendant is that the plaintiff was never ready and willing to perform her part of the contract, as
she had no means to pay the sale price and that she was making repealed requests for extension of time. The first defendant would, therefore,
contend that he was forced to sell the properties in favour of defendants 2 and 3 with a view to ward off his financial difficulties. The purchasers,
who are defendants 2 and 3, claimed to be the bona fide purchasers for value without notice of the suit agreement.
As already noticed, the agreement of sale Ex. A-2 dated 6-10-1973 is not in dispute and that the first defendant has admitted the receipt of a
sum of Rs. 2,000/- on 1-4-1973 a sum of Rs. 3,000/- on the date of the agreement and a sum of Rs. 5,000/- on 17-10-1973 evidenced by the
voucher marked as Ex. A.3. The suit amount of Rs. 21,500/- was agreed to be adjusted out of the sale consideration. Therefore, the balance of
sale consideration was only Rs. 14,000/-. It is the specific case of the plaintiff that the first defendant approached her and wanted her to pay a
further sum of Rs. 1,000/- to enable him to release the attachment subsisting over the properties and assured her that he would complete the
transaction immediately thereafter. The last date for execution of sale as per Ex. A.2 was 6-1-1974. As per the request made by the first
defendant, the plaintiff paid a sum of Rs. 1,000/- to the first defendant on 30-12-1971 and made an endorsement Exhibit A.4 on the agreement of
sale evidencing The payment of the said sum ol Rs. 1,000. -. In these circumstances, the time for performance of contract was extended by six
months, namely till 10-6-1974 as seen from the endorsement Ex. A.4. However, it was contended on behalf of the first defendant that the said sum
of Rs. 1,000/- was not paid for raising the attachment over the suit properties, taking advantage of the fact that there is no recital to that effect in
the endorsement Ex. A.4. But I find that the first defendant has admitted that the suit properties were subject to attachment for the debts due to
one Chettier even prior to the date of Ex. A.2 agreement. It is further admitted by him that the attachment was raised subsequent to Ex. A.2 and
prior to the telegram sent by the first defendant to the plaintiff under Ex. A.5. The case put forward by the first defendant now is that though an
endorsement was made under Ex. A.4 extending the time for performance of the contract till 10-6-74, he insisted upon the agreement to be
completed within a period of one month as he was in dire need of money and that the plaintiff had agreed to do so. Curiously enough, the first
defendant sent a telegram Ex. A.5 on 8-2-1974 to the plaintiff expressing his readiness and willingness to execute the sale deed and asking her to
he present at the office of the Sub-Registrar on 11-2-1974 and further stating that on her failure to do so, the agreement would he cancelled. The
plaintiff immediately sent a reply telegram Ex. A.6 expressing her readiness to complete the sale agreement. It was followed by a notice Ex, B. 1
sent by the counsel for the plaintiff to the first defendant on 9-2-1974 intimating that time for performance of the contract is available till 30-6-
1974. The plaintiff further stated in the notice that she was making necessary arrangements to perform her part of the contract within the stipulated
time. On coming to know that the first defendant was making arrangements to sell the suit properties to the fourth defendant, she caused a telegram
to be issued to both of them. Ex. B.2 is the copy of the telegram dated 23-2-1974. In reply to the said telegram, the first defendant sent a letter
Ex. A.7 dated 1-3-1974 to the counsel for the plaintiff stating that he had already sold the properties to third parties, since the plaintiff failed to
perform her part of the contract.
Mr. Alaginswami, the learned Advocate General appearing for the appellant/ plaintiff submitted that the first defendant after having extended
the time for performance of the contract till 30-6-1974, was not entitled to demand performance of the contract unilaterally) fixing a date of his
own choice, long before the expiry of the stipulated time, namely 30 6-1074. He further submitted that even for the telegram Ex. A.5 sent by the
first defendant to the plaintiff on 8-2-1974, the plaintiff had categorically stated that she was ready and willing to perform her part of the contract
before the stipulated time and that she was making arrangements for the same. I find that the said submissions are well-founded and the plaintiff has
to succeed on that point. The learned Subordinate Judge proceeded on the basis that the plaintiff was not ready and willing to perform her part of
the contract and that is the reason why the time was extended from 6-1-1974 to 30-6-1974. He has also doubted the purpose for which the said
sum ol Rs. 1,000 -was paid by the plaintiff on 30-12-1973, as per Ex. A.4. I fail to understand how the learned Judge could come to such a
conclusion when the parties themselves had agreed to extend the time after the payment of the said sum of Rs. 1,000/-. It is not in doubt that time
was extended by consent of parties and a specific recital is made to that effect in Ex. A.4. Therefore, it is not open to the first defendant to contend
now that the plaintiff was not ready and willing to perform the contract when the time was extended under Ex. A.4. If that was a fact, the first
defendant could have refused to extend the time and put an end to the contract. Instead, time was extended on proper consideration and,
therefore, we can safely come to the conclusion that time was available till 30-6-1974. A vague attempt has been made to show that even though
an endorsement was made extending time for six months, actually it was agreed by the plaintiff to complete the transaction within one month.
Excepting the interested testimony of the first defendant (D.W. 1) there is no acceptable evidence in this regard. Moreover, such a plea is not
available to him in view of the written contract evidenced by Ex. A.4 endorsement.
Mr. K. Raghunathan, learned Counsel appearing for the respondents 2 and 3 was not able to justify the claim of the first defendant demanding
performance of the contract long before the time stipulated in the agreement of sale. It is not open to the first defendant to fix a date for
performance unilaterally immediately after the time was extended from 6-1-1974 to 30-6-1974. The plaintiff was not bound to pay the amount and
take a sale deed on the date fixed by the first defendant and it was open to her to demand execution of the sale deed on payment of the balance of
sale price till 30-6-1974. Again, the learned Judge commented upon the failure on the part of the plaintiff to deposit the balance of sale
consideration into Court in order to show her bona fides. He himself has stated that it is not a mandatory one. It that is so, I fail to understand how
any adverse inference can be drawn against the plaintiff, specially in view of the fact that the first defendant had already sold the properties in
favour of defendants 2 and 3 who are claiming to be the bona fide purchasers for value. There is no finding to the effect that the plaintiff had no
means to pay the balance of sale price and in the absence of such a finding, it is not possible to hold that she was not ready and willing to perform
her part of the contract. On a consideration of the entire evidence. I find that there is absolutely no scope for holding that the plaintiff had
committed breach of contract. On the other hand, the conduct of the plaintiff throughout shows that she was always ready and willing to perform
her part of the contract within the stipulated time and the same was conveyed to the first defendant by means of a reply to the telegram Ex. A.5. It
is impossible to believe that the plaintiff was not in a position to pay the balance after having paid the major portion of the said price. It is admitted
that she possessed properties and further she was not bound to take a sale deed, before the attachment over the properties was raised. I find that
there are absolutely no grounds to deny the relief of specific performance to the plaintiff and that it is only the first defendant who has committed
breach of contract in this case. Hence, the plaintiff is entitled to get a decree for specific performance as prayed for. Points I and 2 are answered
accordingly.
Point No. 3 :-- The learned Advocate General pointed out that defendants 2 and 3 are the sons of the fourth defendant and all of them are
residing as members of the joint family in one and the same place. He referred to the address given in the plaint as well as in the sale deed, Ex.
A.10 and submitted that defendants 2 to 4 are living in the same house. This fact cannot be denied at this stage as Ex. A.10 sale deed is their own
document. Defendants 2 and 3 took up a stand to the effect that they have been divided from their father, the fourth defendant and the property
was purchased by them without reference to the fourth defendant. They have stated that the so-called partition was an oral one. There is absolutely
no material to accept the said plea and no scrap of paper has been filed to probabilise the said contention. Therefore, we have to assume that
defendants 2 to 4 are living together in the same place as members of the same family. As already seen, the plaintiff sent a telegram, Ex. B.2 to the
first defendant on 23-2-1974 itself with a copy to the fourth defendant cautioning them not to enter into any sale transaction in view of the earlier
agreement in her favour. A specific reference has been made in the plaint to this effect and I find that this fact has not been denied by the fourth
defendant in his written statement. Therefore, it is too late in the day to contend that such a communication was not sent to the fourth ''defendant
who was negotiating for the sale of the properties. It is too much to assume that defendants 2-and 3, who are living in the same place were not
aware of this fact and that they had purchased the property without any knowledge about the agreement in favour of the plaintiff. Their very
conduct exposes the falsity in such a plea. D.W. 2 has categorically admitted in his evidence that they did not see the original documents as they
were with the plaintiff as mortgage. Surprisingly, they did not even apply for copies of those documents. Apart from that, no written agreement was
executed between the defendants 1 to 3. When the defendants 2 and 3 knew about the mortgage in favour of the plaintiff, normally one would
expect them to contract and find out the real position. In this case, it has not been done. Even after the sale in their favour, they have not applied
for mutation of their names in the Registry or applied for transfer of the electricity connection in their names. The conduct of defendants 2 and 3
would only indicate that defendants 2 and 3 are not bona fide purchasers. The fact that some amount was paid before the Sub-Registrar would not
alter the situation in any manner as it may be an attempt to create evidence in their favour. The evidence available in this case and the circumstances
surrounding the transactions clearly indicate that the first defendant had attempted to sell the properties in favour of the fourth defendant originally
and after the receipt of Ex, B.2 from the plaintiff, they have colluded together and created a sale deed in the name of defendants 2 and 3. It is not
at all possible to accept the contention of the defendants 2 and 3 that they had acted independently without reference to their father, the fourth
defendant.
Learned Counsel appearing for the fourth defendant submitted that the fourth defendant is an unnecessary party. In view of the specific case of
the plaintiff that it was the fourth defendant who had managed to take the sale deed in favour of his sons-defendants 2 and 3, 1 find that he is a
necessary party to the suit.
Learned Counsel for defendants 2 and 3 contended that the plaintiff could have examined the fourth defendant in support of her case. 1 do not
know how it can be done when it is the specific case of the plaintiff that it is the fourth defendant who is solely responsible for execution of the sale
deed in favour of defendants 2 and 3. On the other hand, nothing prevented the fourth defendant from going to the witness box and deposing as to
what had happened. For the reasons best known to him, he has omitted to do so, after having filed a written statement separately. Hence, this
point is also found against the respondents/defendants.
In the result, this appeal is allowed, the judgment and decree of the lower Court are set aside and the suit is decreed in favour of the plaintiff
insofar as the prayer for specific performance of the agreement of sale executed by the first defendant in favour of the plaintiff is concerned.
Consequently, the plaintiff is not entitled to any damages or refund of the advance amount as prayed for. The appellant will be entitled to get her
costs from defendants 1 to 3 in this appeal.
Appeal allowed.