P. SOMARAJAN, J.

1. Appeal against the decree and judgment dated 23.12.2009 in O.S. No. 621 of 2007 of the Principal Sub Court, Thrissur by the defendants. A suit for specific performance of contract for sale was decreed in terms of plaint granting specific performance in respect of 3 acres 3 cents and 920 sq. links of property scheduled in the plaint. The agreement for sale dated 13.12.2006 was entered into by the plaintiffs and defendants for a sale consideration at the rate of Rs. 14,000/-per cent, totalling an amount of Rs. 42,54,880/-. The time agreed for performance of the contract was six months. It was also agreed that time is the essence of the contract. Out of the sale consideration, an amount of Rs. 3,50,000/- was given in advance. Though the plaintiffs were ready and willing to perform their part of the contract and in spite of issuance of Ext.A2 (a) notice dated 23.5.2007 calling upon the defendants to come and execute the sale deed on 6.6.2007 at 11 a.m. there was no positive response from the defendants. In answer to Ext.A2 notice, the defendants sent Ext.A3 reply notice dated 25.5.2007, expressing that they are ready and willing to perform their part of contract and that it is the plaintiffs who failed to perform their part of contract. The defendants had also expressed their willingness to execute the document at 11 a.m. on 6.6.2007. There on the plaintiffs purchased stamp paper for Rs. 4,25,500/- and got prepared two deeds of sale, one in the name of plaintiffs and the other in the name of one Aboobacker and intimated the same to the defendants. But the defendants did not come forward to execute the sale deed on 6.6.2007. However, the power of attorney holder of the defendants came to the Sub Registrar's Office by afternoon on the same day, but he was not ready to execute the deed as agreed. Then again the defendants issued Ext.A4 notice to the plaintiffs on 7.6.2007 by rescinding the contract for sale due to non performance of the agreement by the plaintiffs and hence the suit.

2. The defendants except the 4th defendant contested the suit denying and disputing the allegations mainly on the ground that the plaint schedule property is not identified. Defendants were ready and willing to perform their part of contract and to execute the deed of agreement and waited at the Sub Registrar's Office from 11 a.m. to 5 p.m. on 6.6.2007. But the plaintiffs did not turn up. Hence the contract was repudiated by the defendants by issuing Ext.A4 notice dated 7.6.2007. The plaintiffs were not having sufficient funds to purchase the property as per the agreement. They were not ready and willing to perform their part of contract at any point of time. The property is not exclusively owned by the defendants and it is known to the plaintiffs even at the time of execution of the sale deed. The property is a co-ownership property owned by the defendants along with another co-owner Laila, who is not a party to the agreement. The defendants were always ready and willing to perform their part of contract. It is due to the default on the part of the plaintiffs the agreement for sale could not be performed. The agreement for sale as such is not capable of performance as one of the co-owners was not a party to the contract and hence cannot be enforced in its entirety. There is no pleading in the plaint by the plaintiffs that they are ready to perform their part of contract to get the contract for sale performed in part excluding the share owned by Laila and hence pressed for dismissal of the suit.

3. The lower court, on consideration of the pleadings and evidence and after hearing the parties, decreed the suit in terms of the plaint allowing specific performance of the contract under the impugned decree and judgment. The following questions came up for consideration:

(1) Whether Ext.A1 contract for sale is capable of performance and what would be the effect of non-joinder of one of the co-owners of the property to the contract?

(2)