- (1.) THIS appeal is preferred against the judgment of the Subordinate Judge, Tiruchirapalli passed in O.S.No.1 of 1984 dated 27.2.1987. The defendants are the appellants.
(2.) THE plaint averments are summarised. THE defendants professed to be the owners of the suit property and they derived title to suit property under the Will executed by Sornathammal in favour of her daughter, the first defendant herein for life and to be taken by her four sons, the defendants 2 to 5 herein absolutely. Defendants entered into a sale agreement with the plaintiff on 11.7.1983 to sell the suit land to the plaintiff for a sum of Rs.2,62,500 and after the execution, the plaintiff paid a sum of Rs.1,40,000 in cash and the defendants received the same. As per the sale agreement, the defendants have to receive the balance of sale price, namely, Rs.1,22,500 from the plaintiff and execute the sale deed. Since the defendants derived title to the suit land under the Will of the christian lady, they promised to get the probate of the Will before the execution of the sale deed. THE defendants also promised to get Income-tax Clearance Certificate before the registration. But, they have not done any of the two things. Still the plaintiff wanted them, as an alternative course, to get the consent letters of any four of the five in favour of the fifth person to enable the fifth person to proceed with the sale deed since all of them are happened to be the heirs at law under the Indian Succession Act, but they did not do that also. THE plaintiff was ready and willing to get the sale deed executed in his favour or in favour of his nominee Deepak Real Estate at any time within the period of three months and he was keeping the money ready with him to pay the defendants. Pursuant to the sale agreement, the plaintiff was placed in possession of the suit land since the advance itself is more than 40% of the sale price to enable the plaintiff to survey the land for preparing a lay-out and to plant the boundary stones. THE plaintiff is actually dealing in real estate and so, he has prepared the lay-out converting the land into house-sites. THE defendants seemed to have been offered an enhanced price for the land by some third party and they abruptly sent a notice to the plaintiff stating that the agreement is cancelled. THE plaintiff sent a reply stating that the agreement is still subsisting and he can specifically enforce the agreement. THE plaintiff prays for judgment and decree against the defendants for specific performance of the agreement dated 11.7.1983 by directing the defendants to execute the sale deed either in favour of the plaintiff or in favour of his nominee Deepak Real Estate and in default to cause the sale deed to be executed by the court. The fifth defendant, in his written statement and additional written statement filed on behalf of the defendants, contended that the existence of the agreement dated 11.7.1983 is true and and three months? time was granted to the plaintiff to pay the balance. The plaintiff never insisted for obtaining a probate of the Will and the defendants never agreed to get it probated and the getting of Income-tax Clearance Certificate was also not made as a condition precedent and they do not find a place in the agreement. The averment in the plaint that an alternative course was suggested to get consent letter of four persons in favour of the fifth defendant and the defendants have not done so are all false. The plaintiff was not ready and willing to perform his part of the contract. The defendant issued a notice to the plaintiff on 5.12.1983 cancelling the agreement and prior to that, the plaintiff never gave any notice to the defendants about his alleged readiness and willingness to perform his part of the contract. The name Deepak Real Estate is not found in the agreement and no possession was given in the agreement to the plaintiff and admittedly, there was no such recital in the agreement to that effect. Only a permission was promised to be given for demarcating the plots while preparing the lay-out and that has not been done by the plaintiff. The plaintiff has not acted as per the terms of the agreement in paying the balance of sale consideration and he committed wilful breach and he is not entitled to any relief. The fifth defendant has got the suit property in the family partition and he is not going to sell the same. The fifth defendant is the exclusive owner of the suit property. The plaintiff in the reply statement has stated that no suspicion arose in the mind of the plaintiff, that the defendants would go back against the terms of the agreement and so, there was no necessity to send notice in advance. The plaintiff is a dealer in real estate and he had already plotted out the land and put stones. The defendants were keeping a silent watch over the activities of the plaintiff and they did not raise any protest. So the plaintiff had no occasion to suspect the intention of the defendants. The plaintiff is in actual possession of the suit land. The defendants have no right to cancel the agreement and it is valid and binding. The trial court framed ten issues and on a consideration of the matter came to the conclusion that the plaintiff was ready and willing to perform his part of the contract and he is entitled to the specific performance of the contract and decreed the suit as prayed for. Aggrieved by the judgment, the defendants have preferred this appeal. In this judgment, the parties are described as arrayed in the suit. The points for determination in the appeal are: Whether the plaintiff was ready and willing to perform his part of the contract. Whether the time was the essence of the contract. Whether the plaintiff has committed breach of the contract as contended by the defendants.
(3.) POINTS.1 to 3: Ex.A-1 is the Agreement for sale dated 11.7.1983 admittedly executed by the defendants in favour of the plaintiff under which the defendants agreed to sell 1.50 acres of Nanja land to the plaintiff for a consideration of Rs.2,62,500 and the plaintiff paid a sum of Rs.1,40,000 out of the sale consideration on the date of the sale agreement to the defendants and there is no dispute about the same. As per the recital in the Sale Agreement Ex.A-1, the plaintiff agreed to pay the balance of sale consideration of Rs.1,22,500 within three months from the date of the agreement and get the sale deed executed by the defendants. According to the defendants, the plaintiff did not pay the balance of consideration within three months as agreed and had committed wilful breach of the same and they issued Ex.A-5 notice on 5.12.1983 cancelling the agreement. The plaintiff, in his reply in Ex.A-6 dated 9.12.1983, denied the breach and requested the defendants to probate Ex.A-3 Will under which they derive title to the property. Immediately thereafter, the plaintiff has filed the suit for specific performance on 2.1.1984. Ex.A-3 is the registration copy of the Will executed by Sornathammal, a christian lady, on 27.6.1953 bequeathing the suit property along with the other properties in favour of the defendants and as per the recital, the first defendant has to enjoy the properties till her life-time and after that, the other defendants to get it absolutely in equal shares. Admittedly, the above Will has not been probated and nothing is mentioned about probating the same in Ex.A-1 agreement for sale. The plaintiff called upon the defendants to probate the Will only in his Ex.A-6 reply and in the plaint, he has averred the same. The defendants contend that the obtaining of the probate was not a condition precedent for paying the balance of consideration and it was not mentioned in Ex.A-1 sale agreement. The learned counsel for the / defendants Thiru Rajaram contends that the defendants derived title to the suit property through the Will executed by late Sornathammal and as a Will of christian, it has to be necessarily probated and since it was not probated, the defendants? right to the suit property cannot be recognised and the sale agreement cannot be enforced. ;