ROSHAN DALVI, J.

1. The plaintiff has sued for specific performance of the agreement between the plaintiff and the original defendant, now represented by his heirs and legal representatives being the executors of his will dated 02.06.1983, and for reliefs incidental thereto. The plaintiff has also sued for alternative reliefs of refund of the part payment of consideration made by him and for damages which alternative reliefs are not pressed. The original defendant did not file any written statement. He expired soon after the suit. The written statement has been filed by defendant No. 1(A) to 1(E) who are the heirs and legal representatives of the original defendant. Defendant No. 1(A), who was his wife, has also expired. Defendant No. 1(B), who is his son, has contested the suit. Defendant No. 1(C), who is one of the executors of the will of the original defendant, since probated, has signed the written statement along with other defendants but has given separate oral evidence independently and not on behalf of the other defendants. Defendant No. 1(D) and 1(E) are also his heirs and legal representatives who have contested the suit separately though upon largely the same defence.

2. The defendants have contended that there was no concluded binding and subsisting agreement between the plaintiff and the original defendant, that the agreement dated 02.06.1983 is not valid and enforceable as it was conditional, the condition not having been fulfilled, so that it is not enforceable, the plaintiff was not ready and willing to perform its obligation under the agreement and the suit property is a dwelling house of the original defendant and other co-owners and hence not liable to specific performance of the undivided interest of the original defendant therein. Their further defence is the non admission of the averments in the plaint relating to the negotiations between the parties, the agreement of the co-owners to sell the entire property in which the original defendant had 1/4th share, right, title and interest and the further payments made.

3. The agreement between the plaintiff and the original defendant is for the sale of the 1/4th undivided share, right, title and interest of the original defendant in the said premises which was a part of the entire property of the original defendant and the other three co-owners. The agreement shows various terms and conditions, the most important of which is the payment of the price by the plaintiff and the execution of the conveyance of the 1/4th undivided share of the original defendant by the original defendant. There are certain usual representations and covenants made by the original defendant and certain obligations of the original defendant under the agreement. There are no obligations of the plaintiff except for payment of the purchase price under the said agreement. The plaintiff, in fact, has certain, otherwise unusual, rights under the said agreement. The original defendant has also executed the usual irrevocable power of attorney in favour of the plaintiff.

4. Based upon the pleadings between the parties the following issues came to be framed by Justice Chandrachud as he then was on 28.04.2009 which are answered as follows:-

ISSUES

(1) Whether the plaintiff proves that the agreement dated 2nd June, 1983 is valid and subsisting and/or enforceable against the defendants. Yes

(2) Whether the plaintiff proves that all the co-owners of the suit property have completed the sale of their share of the suit property to the plaintiff. No. But not material to the suit.

(3) Whether the plaintiff proves that it has at all times been ready and willing to perform the Agreement dated 2nd June, 1983. Yes.

(4) Whether the plaintiff proves that it is entitled to specific performance of the Agreement dated 2nd June, 1983. Yes.

(5) If the answer to the issue No. 4 above is in the affirmative