(Common Prayer: Second Appeals filed under Section 100 C.P.C., against the Judgment and Decree of the learned Additional District and Sessions Judge of Hosur, dated 17.04.2015 in AS.Nos.2 & 3 of 2014 reversing the Judgment and Decree of the learned Subordinate Judge of Hosur, dated 30.08.2013 in OS.No.56 of 2008.)

Common Judgment:

1. These Second Appeals have been preferred against the common Judgment and Decree passed by Additional District and Sessions Judge, Hosur, dated 17.04.2015 in A.S.Nos.2 and 3 of 2014 respectively.

2. The appellant in both the appeals is the plaintiff, who instituted the suit in O.S.No.56 of 2008 against the respondents seeking the relief of specific performance. The said suit was decreed by the Trial Court by Judgment and Decree dated 30.08.2013.

3. Aggrieved by the said Judgment and Decree, the first defendant preferred A.S.No.3 of 2014 and the second defendant preferred A.S.No.2 of 2014 before the learned Additional District and Sessions Judge, Hosur. Both the appeals were heard together. The First Appellate Court allowed both the appeals and set aside the Judgment and Decree passed by the Trial Court in O.S.No.56 of 2008, thereby dismissing the suit. However, the First Appellate Court granted an alternative money decree directing the defendants to pay a sum of Rs.3,16,000/- with interest at the rate of 9% per annum from the date of plaint till the date of decree and thereafter at the rate of 6% per annum.

4. Aggrieved by the said Judgment and Decree, the plaintiff has preferred the present Second Appeals.

5. The case of the plaintiff before the Trial Court is that the defendants are the owners of the suit property and that they entered into an agreement of sale with the plaintiff on 30.01.2006 for a total sale consideration of Rs.4,76,000/-. On the date of the agreement, the defendant received a sum of Rs.1,36,000/-towards advance, and the balance sale consideration was agreed to be paid within one month. According to the plaintiff, she was always ready and willing to perform her part of the contract by paying the balance sale consideration. It is further stated that the defendant subsequently demanded and received a further sum of Rs.1,25,000/- on 17.12.2006. Thereafter, a further sum of Rs.45,000/-was paid, and another sum of Rs.10,000/- was paid on 29.11.2006. An endorsement was made on the reverse side of the agreement of sale acknowledging the receipt of the said sum of Rs.55,000/-. Thus, according to the plaintiff, the defendant had received a total sum of Rs.3,16,000/- towards the sale consideration, leaving a balance of Rs.1,60,000/-. Since the defendant was evading execution of the sale deed, the plaintiff issued a legal notice dated 01.10.2007. Though the notice was received by the first defendant, no reply was issued. During the pendency of the suit, the second defendant was impleaded as a party. Hence, the plaintiff filed the suit seeking specific performance of the agreement of sale.

6. The case of the first defendant is that the suit property is his ancestral property and that he entered into an agreement of sale with the plaintiff on 30.01.2006 and received a sum of Rs.1,36,000/- towards advance. According to the first defendant, the plaintiff was required to pay the balance sale consideration within one month. However, the plaintiff was never ready and willing to pay the balance amount. It is stated that, since the defendant was in urgent need of funds, the plaintiff paid a further sum of Rs.1,25,000/- towards the sale consideration, but thereafter failed to pay the balance amount. The first defendant specifically denied the receipt of the alleged sum of Rs.55,000/- on 29.11.2006 and also denied the endorsement allegedly made on the reverse side of the agreement of sale. It is further stated that, after the expiry of the period fixed under the agreement, the plaintiff requested the defendant to extend the time by another two months, stating that she did not have sufficient funds. The defendant agreed to the said request. Even thereafter, the plaintiff did not come forward to complete the transaction. According to the first defendant, instead of completing the sale transaction, the plaintiff lodged a police complaint and expressed her intention to receive back the advance amount with interest. It is stated that, thereafter, both parties agreed that a sum of Rs.4,00,000/- would be paid in full and final settlement within three months. Though the defendant was subsequently ready with the said amount, the plaintiff refused to return the original agreement and also failed to receive the advance amount. The first defendant further denied the alleged endorsements and stated that they were obtained under threat and coercion by the plaintiff, her husband and their supporters. According to him, the plaintiff was never ready and willing to perform her part of the contract. Hence, the suit is liable to be dismissed.

7. The case of the second defendant is that the suit property and other properties originally belonged ancestrally to one Ramaiah. Ramaiah died intestate, leaving behind his three sons, namely, Krishnappa, Govindu and Choodappa, as his legal heirs. Krishnappa subsequently died, leaving behind his only son, Chandrasekar, who is the first defendant herein, as his legal heir. According to the second defendant, the first defendant executed a rights release deed dated 26.03.1970 in favour of his uncles, Govindu and Choodappa, under which the suit properties were allotted to the share of the first defendant under the 'A' Schedule property. It is further stated that, pursuant to the said release deed, the first defendant and the second defendant were in joint possession and enjoyment of the property and that the second defendant is entitled to a half share therein. The second defendant had already instituted a suit for partition in O.S.No.375 of 2007 before the District Munsif Court at Hosur, and the said suit was decreed on 10.03.2008. Thereafter, she filed a final decree petition, which was also allowed. According to the second defendant, the first defendant had no exclusive right to enter into an agreement of sale in respect of the entire suit property without the consent of the second defendant. Therefore, the agreement of sale is not binding upon her and the suit for specific performance is liable to be dismissed.

8. Based on the pleadings and after hearing both sides, the Trial Court has framed the following issues:

                    “1.Is the plaintiff is entitled for the relief of specific performance as prayed for?

                    2. Is the defendant correct to say that the plaintiff did not perform her part of the agreement dated 30.01.2006?

                    3. Is it correct for the defendant to say that the plaintiff was not ready and willing to perform her part of the agreement?

                    4. Is it correct for the defendant to say that the plaintiff is not entitled for any relief in the suit?

                    5. To what relief plaintiff is entitled to?

                    Additional Issue:

                    6. Is the 2nd defendant binding upon suit sale agreement?”

9. Before the Trial Court, on the side of the plaintiff, PW1 and PW2 were examined and marked Exhibits A1 to A4. On the side of the defendants, the first defendant was examined as DW1 and marked Exhibits B1 and B2. After hearing both sides, the Trial Court has decreed the suit.

10. Aggrieved by the said Decree and Judgment, the second defendant has preferred an appeal in A.S.No.2 of 2014 and the first defendant has preferred an appeal in A.S.No.3 of 2014 before the Additional District and Sessions Court, Hosur. The First Appellate Court framed the following points for determination:

                    A.S.No.2/2014

                    “1.Whether the suit property exclusively belongs to the 1st defendant?

                    2. Whether the plaintiff was always ready and willing to purchase the suit property?

                    3. Whether the plaintiff is entitled to decree for specific performance?

                    4. Whether the Decree and Judgment of Trial Court are liable to be set aside?

                    A.S.No.3/2014

                    1. Whether the 2nd defendant has right over the suit property?

                    2. Whether the Decree and Judgment of Trial Court are correct?

11. After hearing both sides and perusing the records, the First Appellate Court reversed the findings of the Trial Court, set aside the Judgment and Decree passed in O.S.No.56 of 2008 and dismissed the suit for specific performance. However, the First Appellate Court granted an alternative money decree directing the defendants to pay a sum of Rs.3,16,000/- with interest at the rate of 9% per annum from the date of plaint till the date of decree and thereafter at the rate of 6% per annum. Aggrieved by the said Judgment and Decree, the plaintiff has preferred the present Second Appeals.

12. At the time of admission, this Court framed the following substantial question of law in both the appeals:

                    “Whether the finding of the First Appellate Court that the suit for specific performance cannot be granted in view of the fact that the second defendant has got a half share in the suit property is justified in the light of Section 12 of the Specific Relief Act?”

13. Learned counsel appearing for the appellant/plaintiff submitted that the suit was filed for specific performance of the agreement of sale dated 30.01.2006. According to the appellant, the first defendant, who was the owner of the suit property, entered into the agreement of sale with the plaintiff for a total consideration of Rs.4,76,000/-. It is submitted that on the date of the agreement itself, the plaintiff paid a sum of Rs.1,36,000/- and agreed to pay the balance amount within one month. Thereafter, the first defendant received a further sum of Rs.1,25,000/- and subsequently a sum of Rs.55,000/-, for which endorsements were made on the agreement. According to the appellant, the first defendant admitted the execution of the agreement and receipt of the advance amount. Therefore, the execution of the agreement itself stands proved. The Trial Court, after appreciating the evidence, rightly decreed the suit.

                    13.1. Learned counsel further submitted that the First Appellate Court erred in declining the relief of specific performance merely on the ground that the second defendant had a half share in the suit property. According to him, even assuming that the second defendant has a half share, the agreement is enforceable at least to the extent of the share of the first defendant. It is further submitted that the first defendant owned more than 1.5 acres of land and the suit agreement relates only to an extent of 14 cents. Therefore, according to the appellant, the alleged share of the second defendant would not prevent the first defendant from conveying the portion covered by the agreement.

                    13.2. Learned counsel further submitted that the partition proceedings initiated by the second defendant were subsequent to the agreement and that the plaintiff was not made as a party to the said proceedings. Therefore, the same cannot affect the rights of the plaintiff under the agreement of sale. Hence, the learned counsel prayed for setting aside the Judgment and Decrees of the First Appellate Court, and to restore the Trial Court Decree and Judgment.

14. Per contra, learned counsel appearing for the respondents submitted that the suit properties are ancestral properties and that the second defendant is entitled to a half share therein. Therefore, the first defendant had no absolute right to execute an agreement of sale in respect of the entire property without the consent of the second defendant. It was further submitted that the plaintiff was not ready and willing to perform her part of the contract. Though the agreement was entered into on 30.01.2006 and the time fixed for completion was one month, the plaintiff did not take any steps to complete the transaction within the stipulated period. The alleged payment of Rs.55,000/- on 29.11.2006 and the endorsement made on the agreement were specifically denied by the first defendant. The plaintiff issued the legal notice only on 01.10.2007, after a considerable lapse of time. However, the Trial Court has granted decree without appreciating the facts in a proper perspective. However, the First Appellate Court rightly said that the second defendant having ½ share over the property, and thereby the plaintiff is not entitled to specific performance of contract under Section 17 of Specific Relief Act. Therefore, the First Appellate Court has rightly allowed the appeal and set aside the Decree and Judgment passed by the Trial Court. Therefore, both the Second Appeals are liable to be dismissed.

15. This Court heard both sides and perused the records.

16. For the sake of convenience and brevity, the parties in these appeals will be referred as per their ranking in the Trial Court.

17. The plaintiff instituted the suit for specific performance based on the agreement of sale dated 30.01.2006. The total sale consideration was fixed at Rs.4,76,000/-. On the date of the agreement, a sum of Rs.1,36,000/- was admittedly paid towards advance, and the balance sale consideration was agreed to be paid within one month. The execution of the agreement and receipt of the initial advance of Rs.1,36,000/- are admitted by the first defendant. However, the first defendant denied the subsequent payment of Rs.55,000/- and the endorsement allegedly made on the agreement. Therefore, insofar as the alleged subsequent payment of Rs.55,000/- is concerned, it was incumbent upon the plaintiff to establish the same by acceptable evidence. More importantly, the plaintiff was required to establish that she was continuously ready and willing to perform her part of the contract. The agreement was executed on 30.01.2006, and the time stipulated for completion of the sale transaction was one month. However, immediately after the expiry of the stipulated period, the plaintiff did not take any effective steps to have the sale deed executed. The plaintiff's case is that a further sum of Rs.1,25,000/- was paid on 17.12.2006 and that another sum of Rs.55,000/- was paid on 29.11.2006. The plaintiff thereafter issued the legal notice only on 01.10.2007. The conduct of the plaintiff in making subsequent payments and non taking steps to get sale deed within the stipulated time and issuing notice after a long time shows that the plaintiff was not ready and willing to perform her part of contract. The conduct of the plaintiff assumes significance in considering the requirement of readiness and willingness.

18. It is well settled law that the main requirements for grant of specific performance, the plaintiff has to plead and prove the readiness and willingness from the date of agreement till the date of sale deed.

19. But in this case, the plaintiff failed to prove her readiness and willingness. The said fact has not been considered by the Trial Court. Further, according to the first defendant, the property is ancestral property and the second defendant is the daughter of the first defendant and thereby, the second defendant is entitled to ½ share over the suit property. The plaintiff, who entered into an agreement with the first defendant, should have verified the documents and then only entered into an agreement for sale. While entering into an agreement with the first defendant, the plaintiff failed to ascertain the nature of the properties and the share of the second defendant. Since the second defendant is the daughter of the first defendant and the property is also ancestral property, she has a right over the property by birth. However, she is not a party to the agreement. As per Section 17 of the Specific Relief Act, the agreement in this case cannot be enforceable since the first defendant has no absolute title and right over the property. However, the first defendant admitted the execution of the agreement and thereby, as per Section 12 of the Specific Relief Act, though the second defendant having ½ share over the property, in respect of the share of the first defendant, the plaintiff is entitled for specific performance of the contract.

20. This Court, in the previous paragraphs, discussed that the plaintiff was not ready and willing to perform her part of the contract, and thereby, the plaintiff is not entitled to the relief of specific performance of the contract. Though the First Appellate Court did not discuss about Section 12 of the Specific Relief Act and only discussed about Section 17, the findings of the First Appellate Court that the suit for specific performance cannot be granted in view of the fact that the second defendant has got ½ share in the suit property is not justified in the light of Section 12 of the Specific Relief Act. However, the plaintiff is not entitled to the relief of specific performance, as she failed to prove her readiness and willingness. The Trial Court has not discussed about the readiness and willingness. As the plaintiff is not entitled to specific performance of the contract, as the agreement is not enforceable, since the second defendant has ½ share over the property. Therefore, the plaintiff failed to prove her readiness and willingness to perform her part of the contract thereby she is not entitled to decree for specific performance. However, the Trial Court erroneously decreed the suit without considering the readiness and willingness of the plaintiff. The First Appellate Court also failed to consider the readiness and willingness of the plaintiff and only on the ground the 2nd defendant also having share declining to grant specific performance and reversed the Decree and Judgment of Trial Court. However, awarded money decree for refund of Advance money. The defendant has not challenged the money decree granted by the First Appellate Court. Though the defendant denied the receipt of Rs.55,000/- and the endorsement made in the agreement to this regard, he did not challenge the money decree, thereby this Court need not interfere with the money decree granted by the First Appellate Court as the defendant agreed with the Judgment and Decree in respect of money decree. Therefore, as discussed above the Substantial Question of Law is answered in favour of the appellant, however, on the ground of non proving the readiness and willingness, the plaintiff is not entitled to the decree for specific performance of contract. Hence, these appeals have no merit and deserve to be dismissed. Accordingly, both the appeals are dismissed. No costs.