A.P. Abdul Jabbar (died) vs C. Selvarajan

R. Karuppaiah, J.—This Appeal Suit, has been originally filed by the sole deceased first appellant/first defendant in the suit, as against the decree and judgment dated, 17.03.1992, made in O.S. No. 471 of 1989 on the file of Subordinate Court, Dindigul.

The respondents 1 to 4 in the above said Appeal Suit (i.e.) plaintiffs 1 to 4 in the suit are also challenged the decree and judgment passed by the trial Court regarding the grant of a decree for specific performance in respect of the B Schedule property mentioned in Ex. A4 instead of suit properties.

During the pendency of the appeal and cross objection, the sole appellant namely Abdul Jabbar was died and the appellants 2 to 11 were impleaded as legal heirs of the first appellant and further during the pendency of the appeal, the third and fifth respondents were also died and their legal heirs impleaded as respondents 6 to 11 and 12 and 13 respectively. But the cross objectors have not taken any steps to implead the above said legal heirs of both the deceased K. Chellapandian/3rd plaintiff and A.P. Abdul Jaber and A.P. Abdul Hameed/respondents/defendants in the cross objection.

For the sake of convenience, the parties arrayed in the original suit in O.S. No. 471 of 1989 referred in this appeal suit and also in the cross objection.

The respondents 1 to 4 in the appeal suit who are the plaintiffs, filed a suit to grant a decree for specific performance of agreement of sale dated 18.09.1979 and directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiffs by receiving balance sale consideration of Rs. 20,000/- in respect of the suit properties.

Briefly the case of the plaintiffs stated in the plaint is that the plaintiffs 1 and 2 are brothers and the children of the third plaintiff and one Vimala. The third and fourth plaintiffs are brothers. The suit properties and other portions of the properties jointly purchased by both the first and second defendant through a registered sale deed dated 8.3.1988 and jointly enjoyed the same. The Plaintiffs 1 to 4 and also the third plaintiffs wife namely Vimala taken a house on lease and residing as tenants in the south west portion of the suit properties. In the year 1979, both the defendants 1 and 2 had entered into a oral partition and in the said oral partition the suit properties were allotted to the share of the first defendant.

It is also averred in the plaint that the first defendant, in the month of January 1979 offered to sell the suit properties to the third plaintiff and as such a oral agreement of sale was entered on 15.7.1979 and received a sum of Rs. 500/-. The first defendant also agreed on 6.8.1979, to sell the suit properties for total sale consideration of Rs. 60,000/- and received Rs. 2001/- as part sale consideration and also received Rs. 9500/- on 11.8.1979, totally Rs. 12,000/-. Thereafter on 18.9.1979 after receiving another sum of Rs. 20,000/- and the third defendant''s wife namely Vimala and the first defendant entered in to a written agreement of sale. In the above said agreement, time was fixed for specific performance of the contract as ten years. But it is omitted to be mentioned in the above said agreement of sale. The first defendant also received a sum of Rs. 3000/- on 3.10.1979 and Rs. 5000/- on 11.2.1991. Hence the plaintiffs have to pay the balance sale consideration of Rs. 20,000/-. It is further stated in the plaint that, due to family dispute, the above said Vimala left the plaintiffs house and living at her parents house at Trichy. The above said Vimala demanded Rs. 40,000/- from first and second plaintiff as part of sale consideration paid by her to 1st defendant and in addition, demanded Rs. 1000/- totally Rs. 41,000/- for execution of made over of the above said agreement of sale to the first and second plaintiffs. Accordingly the first and second plaintiffs paid a sum of Rs. 41,000/- to the above said Vimala and obtained a deed of made over of sale agreement on 5.6.1986. After the above said made over of sale agreement, the Plaintiffs 1 and 2 approached several times for execution of the sale deed but the first defendant evaded. The plaintiffs are ready and willing to pay the balance sale consideration of Rs. 20,000/- and obtained sale deed. But the first defendant refused to execute the sale deed.

The Plaintiffs have further stated in the Plaint that the 2nd defendant colluded with the 1st defendant, filed a collusion suit for partition in O.S. No. 134 of 1981 without impleading the plaintiffs or the above said Vimala and the second defendant obtained an ex-parte decree against the first defendant. In the above said decree passed in O.S. No. 134 of 1981, the suit properties were allotted to the share of the second defendant. Therefore the plaintiffs impleaded the second defendant as party in their suit. Further the second defendant filed a Rent Control Proceedings against the third plaintiff in R.C.O.P. No. 109/1982 for eviction and obtained a decree. The third plaintiff preferred a Civil Miscellaneous Appeal in C.M.A. No. 29 of 1984 which was decided in favour of the third plaintiff. In the meantime, the first defendant filed a civil suit in O.s. No. 677 of 1986 as if the first defendant is in possession and prayed for a decree and judgment against the third and fourth plaintiffs and the above said suit is pending. Therefore, the plaintiffs filed this suit for a decree of specific performance of the agreement of sale dated 18.09.1979.

The deceased first appellant/first defendant in the above said suit filed a Written statement in which it is not disputed the relationship of the plaintiffs and also admitted that the suit properties and other properties were originally purchased by both the defendants under the sale deed dated 8.3.1958 and they were in joint possession and let out to the tenants and collecting rent. But the first defendant specifically denied the alleged 1979 oral partition and also denied the contention that in the above said oral partition, the suit properties were allotted to the first defendant and the remaining portions were allotted to the second defendant. According to the first defendant, there was no partition between the first and second defendants on the date of alleged agreement of sale dated 8.3.1958.

The first defendant has further denied the alleged oral agreement of sale and also denied the contention that period often years was fixed for execution of sale deed. According to the first defendant, written agreement of sale dated 18.09.1979 is not enforceable since on the date of the above said agreement, the suit properties were not partitioned and also the description of properties also not correct. Further no time was prescribed for execution of sale deed as alleged in the plaint. According to the first defendant, the plaintiffs have no means to pay the balance sale consideration for which on 3.10.1979 paid only Rs. 5000/- and on assurance by the plaintiffs to pay the balance sale consideration within few days. Again on assurance, the first defendant received Rs. 5000/- on 11.02.1982. Therefore the plaintiffs have no means to pay the sale consideration of Rs. 20,000/-. Further no steps were taken by the plaintiffs or by the Vimala for completion of the sale. There is no readiness and willingness on the part of the plaintiffs and Vimala. Further the above said Vimala requested some more time for paying the balance sale consideration. But the first defendant refused and hence the above said Vimala abandoned the agreement of sale. Therefore the above said agreement of sale is unenforceable, and also barred by limitation.

It is also averred in the written statement of the first defendant, that the alleged made over of agreement of sale was created and anti dated and also barred by limitation. The first defendant also denied the contention of the plaintiffs that the defendants 1 and 2 colluded with each other and filed the suit in O.S. No. 134 of 1981. According to the first defendant, the second defendant was in enmity with the first defendant and due to ill health and also not known about the suit, he has not appeared in the above suit, and the second defendant fraudulently obtained the above said judgment and decree. Hence it is not valid and not binding on the first defendant. Since the third plaintiff attempted to purchase the other portions which was let out to another tenant and for vacating the portion rented out to the third plaintiff, the first defendant filed a suit in O.S. No. 665 of 1986. The first defendant also pleaded ignorance of the proceedings in R.C.O.P. No. 109 of 1982 and C.M.A. No. 29 of 1982. According to the first defendant the above said agreement of sale dated 18.09.79 is not valid on the ground that it is not enforceable, vague, indefinite and also passed inadequate consideration. Further, the plaintiffs or Vimala are not always ready and willing to perform their part of contract and also they have no means to pay the balance sale consideration. The above said Vimala herself abandoned the claim. Further the suit itself barred by limitation. At the time of alleged agreement of sale, the suit properties were joint properties of both the defendants and hence the first defendant as one of the co-owner cannot execute a sale deed. Therefore, from all the reason stated above the suit is not maintainable and liable to be dismissed.

The second respondent/second defendant filed a separate written statement in which it is admitted that the suit properties were jointly purchased by both the first and second defendants on 08.03.1958 and enjoyed the same jointly. But the second defendant has denied the alleged 1979 oral partition and also denied in the partition, the suit properties were allotted to the first defendant. The suit properties were rented out by both the defendants and rent also collected by both defendants, as per convenience. The third plaintiff alone was tenant in portion of the suit properties and enjoyed the above said portion as tenant and fourth plaintiff has no right in the suit properties. Since difference of opinion arose between both the defendants 1 and 2, the second defendant had filed a suit for partition in O.S. NO. 134 of 1981 as against the first defendant and preliminary decree was passed and the final decree was also passed in I.A. No. 1117 of 1982 as per the Commissioner''s report. In the above said final decree, the suit properties were allotted to the second defendant. Therefore, the plaintiffs have no right in the suit properties.

It is also averred in the written statement of the second defendant that since the third plaintiff has not paid the rent, the second defendant filed R.C.O.P. No. 109 of 1982 and obtained a decree and the above said proceeding also pending. Therefore, the alleged agreement for sale is not true. According to second defendant, in respect of the second-defendant''s properties, the first defendant or the plaintiffs or anybody has no right to execute any agreement for sale and hence the above said agreement for sale is not binding the second defendant and also not valid in law. Further it is denied that the alleged made over of agreement for sale as it is created document. The plaintiffs are not entitled to any relief and this second defendant is unnecessary party to the suit. This second defendant is not concerned with the alleged filing of suit in O.S. No. 67 of 1986. The plaintiffs are not entitled to the relief of specific performance on the ground of impossibility of performance. It is also denied that O.S. No. 134 of 1981 was filed by the second defendant colluding with the first defendant. Therefore prayed for dismissal of the suit with exemplary cost.

The trial court has framed the following issues including additional issues.

Whether it is correct that the agreement of sale dated 18.09.1979 is not valid and not enforceable?

Whether the above said Vimala is ready and willing to perform her part of contract?

Whether the above said Vimala relinquished her right in the sale agreement?

Whether the sale agreement made over dated 05.06.1986 is valid and enforceable?

Whether the plaintiffs are entitled to relief of specific performance?

To what relief the plaintiffs are entitled to?

Additional Issues are as follows:

Whether the alleged agreement for sale is binding on the second defendant''s share?

Whether the suit is barred by limitation?

The trial Court, on perusal of the oral and documentary evidence adduced on both sides and finally answered the first issues as the alleged agreement of sale Ex. A3, dated 18.09.1979 is valid and executable, but the above said agreement of sale can be executed only in respect of B schedule of properties shown in Ex. A4-sketch and answered accordingly. The trial Court has answered the second issue as the above said Vimala always ready and willing to perform her part of contract. Further the trial Court has held that the above said Vimala has not relinquished or abandoned her claim and answered the third issue accordingly. The trial court has answered the fourth issue as the alleged made over of agreement of sale dated 5.6.1986 is valid and enforceable. The trial Court has answered for fifth issue as the plaintiffs are not entitled to the relief of specific performance in respect of the suit properties, but the plaintiffs are entitled to the relief of specific performance in respect of B schedule of properties shown in Ex. A4 and answered the 5th issue accordingly. Finally the trial Court has directed the plaintiffs to deposit the sale consideration of Rs. 20,000/- within one month and directed the first defendant to execute the sale deed in respect of the B schedule properties shown in Ex. B4 and also directed the first defendant to pay the costs to the plaintiffs and also directed to annex Ex. B4 along with decree but dismissed the suit in respect of the suit properties and answered the 6th issue accordingly. The trial court considered the additional issues 1 and 2 as the suit is not barred by limitation and the agreement of sale not binding the second defendant and finally decreed the suit as already stated.

Being aggrieved over the above said decree and judgment passed by the trial Court, the first defendant(deceased) filed the first appeal (i.e.) A.S. No. 401 of 1992 and also the plaintiffs 1 to 4 filed the cross objection (i.e.) Cross Objection No. 73 of 1993.

The learned counsel appearing for contesting defendants would submit that while rejected the relief of specific performance of contract in respect of suit properties, the trial court wrongly granted the relief of specific performance of contract in respect of other properties and also pointed out that the plaintiffs are not entitled to the relief of specific performance and also the relief of specific performance granted by trial court in respect of some other properties belonging to the second defendant instead of suit properties since it is illegal and unsustainable. Therefore the learned counsel submitted that the decree and judgment passed by the trial Court are to be set aside and the suit filed by the plaintiffs is liable to be dismissed.

Per contra, the learned counsel appearing for the plaintiffs submitted that the trial Court has rightly held that the plaintiffs are entitled to enforce the agreement of sale, but the trial Court has wrongly granted the decree of specific performance in respect of the second defendant''s properties instead of the suit properties and hence, the above said decree and judgment passed by the trial Court is not correct and filed the cross objection challenging the above said finding. Therefore the learned counsel appearing for both sides admitted that the trial Court has wrongly granted a decree for specific performance of contract in respect of the second defendant''s properties instead of properties. In the above said circumstances, the points for consideration in the appeal suit and cross objection are that:

Whether the alleged oral partition entered between the first and second defendants in the year 1979 pleaded by the plaintiffs'' is true and valid?

Whether the plaintiffs 1 to 4 are entitled to a decree for specific performance in respect of the suit properties as prayed for in the suit?

Whether the trial Court is right in granting a decree for specific performance while Vimala who is a party to the suit agreement of sale Ex. A3 is not impleaded as a party in the suit?

Whether the plaintiffs are entitled to enforce the above said agreement of sale after a lapse of ten years and also the suit is barred by limitation?

Whether the plaintiffs have proved the alleged Ex. A14 Made over of agreement of sale executed by Vimala in favour of the plaintiffs 1 and 2 is true and valid?

Whether the trial court is correct in granting the relief of specific performance in respect of the second defendant''s properties instead of the suit properties is correct and valid ?

Whether the appeal suit and cross objection are to be allowed ?

Point No. 1: It is not in dispute that the suit properties and other properties were jointly purchased by both the first and second defendants under Ex. A1-Sale deed, dated 8.3.1958. Therefore both sides admitted that the suit properties and other properties, originally belonged to both the first and second defendants. In the above said circumstances, the contention of the plaintiffs is that both the first and second defendants orally divided the suit properties and other properties in the year 1979 and in the above said oral partition, the suit properties were allotted to the share of the first defendant and therefore the first defendant agreed to sell the above said first defendant share i.e., the suit properties to one Vimala, who is the wife of third plaintiff, mother of 1st and 2nd plaintiffs, and on that basis, this suit for specific performance is filed by all the plaintiffs. The defendants 1 and 2 who are the brothers and owners of the above said suit properties and other properties specifically denied the alleged oral partition entered between them. In the above said circumstances, it is the duty of the plaintiffs to prove the above said oral partition alleged to have been entered between the defendants 1 and 2 by adducing reliable oral and documentary evidence. In the instant case, the trial court has discussed in detail about the oral and documentary evidence adduced on either side regarding the alleged oral partition and finally held that the plaintiffs have failed to prove the above said oral partition.

Admittedly, no documentary evidence to prove the alleged 1979 oral partition between first and second defendants. In the plaint, it is not stated the date, month of the above said oral partition and only stated as in the year 1979. In the plaint, it is averred that in the month of January 1979 itself the first defendant offered to sell the suit properties to the third plaintiff. Therefore the above said pleadings of the Plaintiffs itself reveal that the alleged oral partition pleaded by the plaintiffs in the year 1979 is absolutely false. Further, on the side of the plaintiffs admitted no documentary or oral evidence to prove the above said oral partition. None of the plaintiffs have no knowledge about the oral partition. The first defendant examined as D.W. 1 has categorically denied the alleged oral partition in respect of the landed properties and also the house property in chief examination and also in earlier portion of cross examination. The second defendant also specifically denied in his evidence that no such oral partition took place in the year 1979. The first defendant also not specifically stated anywhere in his deposition that in the year 1979 (i.e.) prior to the agreement of sale, there was any oral partition between the first and second defendants and divided the properties. In one place during the long cross examination, D.W. 1 has deposed as if two years prior to the agreement of sale, orally divided the properties. A careful reading of the entire chief examination and cross examination reveal that the first defendant has not admitted the oral partition alleged to have been effected in the year 1979 as pleaded in the plaint. As rightly pointed out by the learned counsel for the defendants, that the slip of tongue of D.W. 1 at the time of lengthy cross examination cannot be presumed as alleged oral partition between the first and second defendants in the year 1979 is proved as true and valid oral partition.

Admittedly the second defendant in this suit already filed a suit for partition in O.S. No. 134 of 1981 as against his brother/first defendant and a preliminary decree was passed and also a final decree has been passed as per Ex. B4. In the above said final decree passed by competent civil court, the suit properties were admittedly allotted to the share of the second defendant herein and it is not challenged by the first defendant or the plaintiffs or Vimala and hence it is became final. Therefore, the above said judgment and decree passed in the above suit itself reveal that no such oral partition between the first and second defendants.

As rightly pointed out by the learned counsel for the defendants, after final decree was passed in the above suit and allotment of share to the second defendant, the second defendant has initiated Rent Control Proceedings as against the third plaintiff herein. In the above said proceedings itself, the third plaintiff has filed a counter statement in which he has categorically admitted that the second defendant is the absolute owner of the suit properties and also assured to pay the rent continuously to the second defendant. It is further reveal that the third plaintiff herein contended in that suit that he had abandoned the agreement of sale and only interested in receiving advance amount paid to the first defendant herein. Therefore the third plaintiff has clearly admitted that the suit properties were allotted to the share of the second defendant in the partition suit and he is the absolute owner of the suit property. A careful reading of oral and documentary evidence on either side reveal that the alleged oral partition held in the year 1979 pleaded in the plaint by the plaintiffs is not true and valid and the trial Court has also correctly discussed in detail and finally held that the above said oral partition is not proved and no interference need in the above said findings and answered first issue accordingly.

Points 2 to 5:

As already discussed the plaintiffs 1 to 4 have jointly filed this suit for specific performance of contract as per Ex. A3 the alleged agreement of sale dated 18.09.1979 entered into between the first defendant and one Vimala and also the alleged Ex. A14 made over of the above agreement of sale deed dated 05.06.1986 in favour of the first and second plaintiffs by their mother, the above said Vimala.

The learned counsel appearing for the defendants mainly contended that the trial Court has not considered the material fact that the above said Vimala has not been impleaded as a party in the suit and also the trial Court has not considered the fact that the plaintiffs never ready and willing to perform their part of the contract from the date of alleged agreement till date of the suit and also not considered the fact that during the pendency of the appeal suit, the plaintiffs have returned back the balance sale consideration deposited by them into the Court. Therefore, the learned counsel pointed out that the conduct of the plaintiffs from the date of agreement till date reveal that the plaintiffs are not ready and willing to perform their part of contract as per Ex. A3 Agreement of sale and Ex. A14-Made Over of agreement of sale for the past 33 years and on that ground alone the plaintiffs are not entitled to the relief of specific performance as prayed for in the plaint. The well settled principle of law is that the plaintiffs in a suit have to prove the facts pleaded in the plaint without picking the holes and weakness in the defence case. Further the plaintiffs have filed this suit for discretionary relief of specific performance to execute the sale deed under agreement of sale and therefore it is their duty to prove that they are always ready and willing to perform their part of contract from the date of agreement of sale till the date of suit and also after suit. In this regard, the learned counsel for the defendants relied on four decisions of the Honourable Supreme Court.

In AIR 1987 Supreme Court 2328 (Parkunnan Veetill Joseph''s son Mathew v. Nedumbara Kuruvila''s son and others) para 14 reads as follows:

"14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.

In 1997 (3) SCC 1 : (1997) 1 CTC 628 (SC) (K.S. Vaidyanatham and others v. Vairavan), Para 10 reads as follows:

"10. It has been consistently held by the Courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to laying that the time limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time limit(s) specified in the agreement have no relevance and can be ignored with Impunity? It would also mean denying the discretion vested in the Court by both sections 10 and 20. As held by Constitution Bench of this Court in Chand Rani v. Kamal Rani (1993) 1 SCC 519 : (1993 AIR SCW 1371), "it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time, if the conditions are (evident?): (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract". In other words the Court should look at all the relevant circumstances including the time limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised.

In 2009 (5) CTC 365 Inderchand Jain (D) through LRs v. Motilal(d) through LRs, in para 13 it reads as follows:

"13. Section 16(c) of the Specific Relief Act, 1963 mandates that the discretionary relief of specific performance of the contract can be granted only in the event the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract. Such readiness and willingness on the part of the Plaintiff is not confined only to the stage of filing of the plaint but also at the subsequent stage viz., at the hearing. It has been so held in Umabai and another v. Nilkanth Dhondiba Chavan (Dead) by LRs and another, 2005 (4) CTC 55 (SC) : 2005 (6) SCC 243.

In 2011 (4) CTC 640 (SC) : AIR 2011 Supreme Court 3234 (Mrs. Saradamani Kandappan v. Mrs. Rjalakshmi and another, in para 25, it reads as follows:

"25. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and "non-readiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and received rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.

Applying the principles laid down by the Honourable Supreme Court in the above said decisions, perused the entire oral and documentary evidence adduced on either side in this case and also the judgments rendered by the trial Court, in the instant case as already discussed in Point No. 1, the plaintiffs have not proved the alleged oral partition between the first and second defendants and also not proved that the suit properties were allotted to the first defendant in the above said oral partition prior to the alleged agreement for sale. In the above said circumstances, the plaintiffs 1 to 4 filed this suit for specific performance of contract directing the first and second defendants to execute the sale deed in favour of the plaintiffs 1 to 4 after receiving balance sale consideration of Rs. 20,000/-. Admittedly, the alleged Ex. A3 agreement of sale entered only between the first defendant and one Vimala and the plaintiffs 1 to 4 are not parties in the above said agreement of sale. It is the further case of the plaintiffs is that the above said Vimala subsequently on 5.6.1986 i.e., after seven years executed Ex. A14, a Made Over/assigned the above said agreement of sale in favour of the plaintiffs 1 and 2 after receiving Rs. 41,000/- and the plaintiffs 1 to 4 filed the suit for specific performance on the basis of the above said Made Over Agreement of Sale without impleading the above said Vimala.

As already discussed, as plaintiffs, it is the duty of them to prove that the plaintiff as well as the said Vimala are always ready and willing to perform their part of contract from the date of agreement. In the instant case, admittedly, the date of agreement is 18.09.1979. After the above said agreement, part payment of sale consideration of Rs. 3000/- paid on 3.10,1979 and another Rs. 5000/- paid on 11.12.1981 and totally Rs. 40,000/- paid till date of suit including earlier payments and remaining balance sale consideration of Rs. 20,000/- has not been paid till date to the first defendant. As already pointed out in earlier paras, the plaintiffs have deposited the balance sale consideration of Rs. 20,000/- before the trial Court but later they withdrawn the above said part of sale consideration from the Court. The main contention of the defendants is that the above said Vimala or the plaintiffs have no means to pay the balance sale consideration amount and they are not always ready and willing to perform their part of contract and further the plaintiffs have not taken any steps to execute the sale deed for more than ten years before the suit and therefore the plaintiffs are not entitled to the discretionary relief of specific performance.

Admittedly no specific reasons have been assigned in the plaint, why the above said Vimala or the plaintiffs have not paid the balance sale consideration of Rs. 20,000/- and obtained sale deed immediately. Further, the plaintiffs have not taken any steps to execute the sale deed for nearly ten years. Further the plaintiffs document namely Ex. A14 Made Over Deed alleged to have executed by the above said Vimala in favour of her sons (i.e.) the first and second plaintiffs in which it is clearly stated that she is not able to pay the balance sale consideration of Rs. 20,000/- to the first defendant and only on that ground alone she executed the Made Over Deed in favour of Plaintiffs I and 2 after receiving Rs. 41,000/- from them. The above said averments in the documents Ex. A14 itself clearly proved that the above said Vimala has no means to pay the balance sale consideration as per Ex. A3 Agreement of Sale as rightly contended by the learned counsel for the defendants. On the side of the plaintiffs have not produced any documents to prove that from the date of agreement of sale till date of suit, the plaintiffs having sufficient means to pay the balance sale consideration. Further on the side of the plaintiffs have not examined the above said Vimala as witness in the suit to prove the fact that she always having sufficient means to pay the balance sale consideration till execution of Ex. A14 Made Over of Agreement. No reason has been assigned for non examination of the above said Vimala who is a material witness to prove the case of the plaintiffs. It is also reveal that after the suit, they have paid the above said balance sale consideration but subsequently they have withdrawn the above said sale consideration. It is clear from the conduct of the plaintiffs and Vimala reveal that they have no means to pay the balance sale consideration and also not willing to obtain the sale deed as per Ex. A3, the agreement of sale.

As rightly pointed out by the learned counsel for the defendants in Ex. B5 i.e., the counter statement filed by the third plaintiff in the Rent Control Proceedings in R.C.O.P. No. 109 of 1982, it is clearly averred that the above said Vimala and the respondent therein are only intended to take steps to get back the balance money from the first defendant.

The learned counsel for the defendants further submitted that the suit is filed on 26.08.1989 only on the basis of Ex. A3 agreement of sale, dated 18.09.1979 and therefore the suit is barred by limitation to seek the relief of specific performance of contract. Per contra the learned counsel for the plaintiffs submitted that the suit is not barred by limitation since the time was fixed as ten years for execution of sale deed in the above said Ex. A3-Agreement of sale, but it is omitted to be mentioned the above said fact in the Agreement. Further the learned counsel pointed out that to prove the same the plaintiffs have examined P.W. 2 and he deposed that 10 years was prescribed for execution of sale deed. It is relevant to refer herein the relevant provision of Section 54 of the Limitation Act:

For Specific Performance of a contract

Three years

The date fixed for the performance, or, if no such date is fixed, when the Plaintiff has Notice that performance is refused.

A careful reading of the above said act reveals that if time is fixed for specific performance of contract three years from the above said date and if no such time is fixed in the agreement of sale, three years from the refusal to perform the part of contract. In the instant case, the defendants have not clearly proved by reliable oral and documentary evidence that the first defendant has refused to perform his part of contract three years prior to filing of the suit. Therefore the suit cannot be dismissed only on the ground of limitation. But in view of the law laid down by the Honourable Supreme Court in the decisions relied on by the defendants as already discussed in earlier paragraphs would reveal that even if time is not assigned in the contract, the court may infer that it is to be performed in a reasonable time. Further the Honourable Supreme Court has clearly held that the Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage. The Hon''ble Supreme Court also laid down the principles that the plaintiffs not only make pleadings but also establishes that he had all along been ready and willing to perform his part of contract and also steep increase in prices also to be considered.

In the instant case, the plaintiffs have not pleaded and proved that the above said Vimala or the plaintiffs 1 and 2 are always ready and willing to perform their part of contract for about ten years and the first defendant alone is responsible for the delay or non performance of the contract. In the above said circumstances as per the settled law laid down by the Honourable Supreme Court, even though the suit is not barred by limitation under Section 54 of the Limitation Act, the Plaintiffs are not entitled to the discretionary relief of specific performance.

As already discussed, the plaintiffs have failed to prove that the above said Vimala was always ready and willing to perform her part of contract from the date of agreement till the date of Ex. A14 Made Over/Assignment deed and also failed to prove that she always having sufficient means to pay the sale consideration from the date of agreement till date of made over to the first and second plaintiffs. Vimala herself admitted in Ex. A14-Made Over of Agreement of Sale that she has no means to pay the balance sale consideration. Therefore, Vimala herself not entitled to seek the discretionary relief of specific performance. In the above said circumstances, the plaintiffs have filed this suit on the basis of alleged Ex. A14-Made Over of Agreement of sale.

As rightly pointed out by the learned counsel appearing for the defendants, the above said Ex. A14 made over/assignment of Agreement of Sale is created, only for the purpose of filing the suit belatedly after a period of seven years and the plaintiffs 1 and 2 not proved the alleged payment of a sum of Rs. 41,000/- by the first and second plaintiff to Vimala as averred in the made over Agreement of Sale. Further the plaintiffs have not examined the above said Vimala to prove the genuineness of Ex. A14 Made Over of Agreement of sale and no reason was assigned for non examination of the above said material witness and that itself shows that the above said document Ex. A14 is created only for the purpose of filing the suit, therefore the plaintiffs 1 and 2 are not entitled to the relief of specific performance of contract on the basis of Ex. A14.

As already discussed in earlier paragraphs, the plaintiffs themselves already withdrawn the balance sale consideration deposited by them before the trial Court, and the above said conduct of the plaintiffs also proved that they are not willing to obtain sale deed from the first defendant as per Ex. A3-Agreement of sale and Ex. A14 made over of sale agreement. Further the above said intention of the plaintiffs seen in Ex. B5 counter affidavit filed by the third plaintiff is that the plaintiffs having interest only return back the advance amount and not interested in getting sale deed. Further it is clear from the averments in the documentary and oral evidence of plaintiffs reveal that the Vimala herself abandon her right to purchase the property. In the above said circumstances, the findings of the trial Court that the Plaintiffs are entitled to the relief of specific performance of contract as per Ex. A3 and Ex. A14 is not correct. Even though the defendants have failed to prove that the suit is barred by limitation, as already discussed alone the plaintiffs have failed to prove that they are always ready and willing to perform their part of contract and the suit is filed after a long period often years. Therefore, the discretionary relief of specific performance cannot be granted and answered the points 2 to 5 in favour of the contesting defendants and as against the plaintiffs.

Point No. 6:

With regard to Point No. 6, the learned counsel for both plaintiffs and defendants admitted that the trial Court has wrongly decreed the suit for specific performance in respect of other properties belonged to the second defendant as per partition decree instead of suit properties. Admittedly, the plaintiffs filed the suit for the relief of specific performance directing the defendants 1 and 2 to execute the sale deed in respect of the suit properties only. The trial Court has granted a decree in respect of other properties on the ground that in the subsequent partition suit, the suit properties were allotted to second defendant and hence the above said relief was granted to the plaintiffs. Admittedly, the second defendant is not a party to the agreement of sale. The trial Court itself has clearly held that the oral partition as pleaded by the plaintiffs was not proved. The second defendant has filed the suit for partition and the competent Civil Court has decreed the suit and final decree was also passed and allotted the suit properties to the share of the second defendant. The plaintiffs or Vimala or the first defendant not challenged the above said final decree proceedings and it has become final. In the above said circumstances, without any pleadings or prayer, the trial Court has wrongly granted the relief in respect of other properties instead of suit properties and therefore the above said finding of the trial Court is not valid.

In view of the findings in earlier points for consideration, the plaintiffs are not entitled to obtain sale deed in respect of the suit properties or the adjacent properties on the basis of Ex. A3 agreement for sale. Any how, 1st defendant has admitted the fact that he received a sum of Rs. 40,000/- from Mrs. Vimala, the mother of the plaintiffs 1 and 2 and also contended that Rs. 41,000/- was received by Vimala from 1st and 2nd plaintiffs mother Vimala as per Ex. A14 made over agreement of sale. As already discussed, the suit properties were allotted to 2nd defendant in the partition suit. In the above said circumstances, the plaintiffs 1 and 2 are entitled to receive advance amount of Rs. 40,000/- with 6% interest from the date of payment by the above said Vimala but the plaintiffs are not entitled to the relief of specific performance in respect of the suit properties as prayed for, in the suit and answered the 6th point for consideration accordingly.

In view of the above said findings in point for consideration No. 1 to 6, the plaintiffs are not entitled to the relief of specific performance to execute the sale deed on the basis of alleged agreement of sale and made over agreement of sale. But the plaintiffs are entitled only to return back the advance amount paid by Vimala as per Ex. A3 agreement of sale to the 1st and 2nd defendant with 6% interest from first defendant.

Accordingly, the above said appeal suit filed by the appellants is to be allowed in part and the decree and judgment passed by the trial court is to be set aside and dismissed the suit with liberty to return back the advance amount with 6% interest from the 1st defendant by the plaintiffs 1 and 2 and answered the 7th point for consideration accordingly. In the result, the appeal suit is allowed in part and the decree and judgment passed by the trial court in O.S. No. 471 of 1989 is set aside and the suit filed by the respondent/plaintiff is dismissed with liberty to recover the advance amount from the 1st defendant by the plaintiffs 1 and 2 with 6% interest. The Cross Objection No. 73 of 1993 is dismissed. No order as to costs.