The court affirmed that a party seeking specific performance must demonstrate readiness and willingness to perform their contractual obligations, substantiated by evidence.

JUDGMENT :

H.P. SANDESH, J.

1. Heard learned counsel for the appellant and learned counsel for respondent No.1.

2. This second appeal is filed against concurrent finding of the Trial Court in O.S.No.10/2016 dated 06.10.2018 directing the defendant No.1 to execute the registered agreement of sale in terms of Ex.P7 and the same is confirmed in R.A.No.6/2020 vide judgment dated 10.08.2022.

3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of specific performance, it is averred in the plaint that defendant No.1 being the absolute owner and in possession of 2 acress, 20 guntas of land which is morefully described in the schedule, the same was acquired by him in the family partition and he has executed the sale agreement on 07.07.2014 for sale consideration of Rs.8,00,000/- and received advance amount of Rs.3,00,000/- and the same is paid by way of Demand Draft and by way of cash. It is the case of the plaintiff that the period mentioned in the agreement is 1½ year to perform the contract and subsequent to execution of agreement also, defendant No.1 has received another advance amount of Rs.1,00,000/- on 30.10.2014 by way of cash and assured him to execute the sale deed. But, inspite of his demand, he did not perform his part of contract. Hence, issued legal notice on 02.12.2015 to defendant No.1. He gave untenable reply and did not come forward to execute the sale deed. Hence, he was constrained to file the suit. It is also his case that though he waited on 04.01.2016 at Sub-Registrar Office by arranging the amount towards balance consideration, he did not come forward to execute the sale deed.

4. In pursuance of the suit summons, the defendant Nos.1 and 2 appeared through their counsel. The defendant No.1 filed the written statement that he is ready to repay the borrowed amount of Rs.4,00,000/- with interest, since he is not intending to execute the agreement of sale and instead of executing the document of mortgage, the said agreement of sale was executed and denied all other averments made in the plaint. He denied the averment that plaintiff is always ready and willing to perform his part of contract. It is his contention that land originally belongs to his grand-father and he bequeathed the said land to his mother Nanjamma under the registered gift deed dated 23.01.1984 and the same was ‘Stridana’ property. Thereafter, her 5 children have allotted the same and he was allotted 2 acres, 20 guntas. It is also contended that suit land to an extent of 2 acres, 20 guntas became joint family property, since he is having wife and child. Hence, prayed the Court to dismiss the suit.

5. The Trial Court having considered the pleadings of the parties, framed the following issues:

“1) Whether the plaintiff proves that the defendant No.1 has executed agreement of sale on 07.07.2014 in his favour and received an advance amount of Rs.3,00,000/- and another advance amount of Rs.1,00,000/- on 30.10.2014 in total Rs.4,00,000/- out of sale consideration amount of Rs.8,00,000/-?

2) Whether there is a liability under the mortgage dated 27.09.2013 in respect of the landed property in favour of defendant No.2?

3) Whether the plaintiff proves that he has been then and now ready and willing to perform his part of contract?

4) Whether the defendant No.1 proves that the suit document is created one?

5) Whether the defendant No.1 further proves that the schedule landed property is ancestral and joint family property?

6) Whether the plaintiff is entitled for the relief of specific performance of contract?

7) What decree or order?”

6. The plaintiff, in order to prove his case, examined himself as P.W.1 and