Radhakrishnan, J.

Plaintiff is the appellant. Suit was instituted for specific performance of an agreement dated 5.2.1978 by which an extent of 7 acres and 92 cents of property was agreed to be sold to plaintiff by defendants 1 and 4. Trial court decreed suit as against defendants 1,2 and 4 and directed execution of a sale deed regarding the suit property so far as their shares are concerned. It was ordered that the plaintiff need only to pay 3/4th of the price agreed for the suit property as defendants 1, 2 and 4 are competent to covey only 3/4th of the total extent available. As far as third defendant is concerned no relief was granted. First defendant took up the matter in appeal, A.S.224/87. Appeal was allowed and judgment of the trial court was set aside. Decree was granted to the plaintiff as against defendants 1, 2 and 4 for return of the amount paid by the plaintiff with 12% interest per annum from the respective dates of payment till realization. Aggrieved by the same the plaintiff has come up with this AFA.

2. Counsel on either side argued elaborately with regard to the validity or otherwise of Ext.A2 agreement dated 5.2.1978. Both the trial court as well as learned single Judge found that plaintiff has succeeded in proving execution of the agreement A2 by defendants 1, 2 and 4. Trial court proceeded as if there was a valid agreement between the parties. Learned single judge however declined jurisdiction under section 20 of the Specific Relief Act basically on the ground that it should not be allowed to be specifically performed in a suit instituted on 2.9.1981 for the reason that it can reasonably be inferred that the contract is not alive either because of a waiver of the right of the plaintiff or abandonment of the contract. Counsel appearing for the plaintiff appellant attacked the above finding of the learned single Judge. Counsel contended that time was not the essence of the contract and time was extended at the request of the defendants. Further counsel also contended that plaintiff was always ready to perform his part of the contract, which was so found by the trial court. Counsel also submitted learned single Judge did not disturb those findings but declined relief to plaintiff on the ground of abandonment and waiver. Counsel referred to several decisions of the Apex Court as well as this court to contend that there is no waiver or abandonment. In the facts and circumstances of the case we feel there is no necessity of referring to those decisions for disposal of this matter. We are only concerned with the question as to whether this court in the facts and circumstances of the case could exercise the discretion in declining relief of specific performance. The Supreme Court in Gobind Ram v. Gian Chand (2000) 7 SCC 548 held that it is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of discretion of the Court and the Court has to consider whether it will be fair, just and equitable to grant a decree for specific performance. Court is guided by principle of justice, equity and good conscience. Reference may also be made to the decision of the Apex Court in P.V.Joseph's Son Mathew v. Nedumbra Kuruvila's Son, 1987 Supp. SCC 3340.

3. Facts would reveal that the first defendant is a widow, second defendant is the son of the first defendant and defendants 3 and 4 are daughters of the first defendant. Admittedly, defendants 2, 3 and 4 are deaf and dumb. Subject matter of the suit is 7 acres and 92 cents of property situated in North Parur. Price of land agreed-upon was Rs.38.50 per cent. Total consideration approximately would come to Rs.28,457/-. Even Rs.38.50 per cent at Parur in the year 1978 is on the lower side though cannot be compared with the land value in the year 2003. Widow and her children who are deaf and dumb are the owners of the property and are still in possession of the property. The question is whether they should be dives