In a suit for specific performance, the plaintiff must prove that he was ready and willing to perform his part of the contract from the time that the contract was made until the date of the decree.

JUDGMENT :

Gajendragadkar, J.

1. This appeal arises out of a suit filed by Respondents 1 and 2 against the appellant claiming specific performance of an agreement to sell the land in suit which had been executed in favour of Respondent 1 by the appellant on December 4, 1947. The case set up by the said respondents in their plaint was that under the agreement in question, the appellant had undertaken to execute a sale deed in respect of the property covered by it within a month after the date of the agreement for payment of Rs. 11,400. At the time of the agreement, Rs. 1500 had been paid and Rs. 2000 and Rs. 1000 had been paid thereafter on January 14, 1948 and February 2, 1948 respectively. Respondent 1 had kept the balance of the sale-price ready to be paid to the appellant, but the appellant postponed executing the sale deed and so, the present suit had to be instituted claiming specific performance of the said agreement.

2. The plaint further alleged that on September 16, 1948, the second respondent had agreed to purchase the said property from the first respondent for Rs. 13,200, and so, the second respondent had joined the first respondent in the present suit. The plaint claimed that the sale deed should be executed by the appellant in favour of the second respondent. To this action, one Manthasa Venkatapathiraju was impleaded as Defendant 2, the appellant having been impleaded as Defendant 1. The plaint alleged that Defendant 2 claimed to be a prior mortgage of the suit property and set up some conflicting claims in regard to the said property, and so, it became necessary to add him as a party defendant to the present action.

3. The claim thus made by the two respondents was challenged by the appellant. His case, was that Respondent 1 was not ready and willing to carry out his part of the contract and that after waiting for a sufficiently long period, the appellant had called upon Respondent 1 to pay the balance within four days by a telegraphic notice sent on October 1, 1948. Since Respondent 1 did not comply with the said notice, the appellant informed him by a notice on November 16, 1948 that owing to his default, the contract stood cancelled. The appellant's contention was that the cancellation of the contract by him was in the circumstances justified.

4. Defendant 2 the alleged prior mortgagee, who had been impleaded as Defendant 2 pleaded that he had been unnecessarily joined to the suit and denied that he had made conflicting statements regarding the subsisting nature of the debt as alleged in the plaint.

5. On these pleadings, the trial Judge framed 6 substantive issues. He rejected the appellant's contention that the second respondent was not competent to file the suit along with the first respondent, but he upheld his pleas on other points. According to the trial court, the appellant had validly rescinded the contract, Respondent 1 had committed breach of the contract and not the appellant, and Respondent 1 was not ready and willing to perform his part of the contract. He also held that the second defendant was not a necessary party to the suit. On these findings, the claim made by the respondents was rejected and their suit was dismissed with costs.

6. Respondents 1 and 2 then preferred an appeal in the High Court of Andhra. Subba Rao, C.J. and Umamaheswaram, J. who heard the appeal in the first instance differed. Subba Rao, C.J. held that Respondent 1 was ready and willing to perform his part of the contract at all material times and that the appellant was not justified in rescinding the contract. As we will presently mention, before the contract was rescinded, Respondent 1 had called upon the appellant to satisfy him about his clear title by producing before him evidence that the prior mortgage over the property covered by the agreement had been satisfied. The trial court had held that this requisition was not bona fide and had, in fact, been set up by Respondent 1 to gain time, because he did not have enough mone