Point of Law: It is settled law that if a person executes an agreement to sell property, vendor is not entitled to put forward, in a suit for specific performance by purchaser defence that vendor had no title.

JUDGMENT :

RFA 594/2012 arises from OS 43/2007. The suit is one for specific performance of an agreement for sale with an alternate prayer for return of advance sale consideration. Specific performance was declined, and the suit was decreed for return of advance. The plaintiff is in appeal.

2. RFA 600/2012 arises from OS 58/2007 which is a cross suit for mandatory injunction to vacate the premises. The defendant, who is the plaintiff in the suit for specific performance, is the appellant.

3. As noticed, the parties to the suit are the same and the suits are filed against each other. For the sake of convenience, the parties are referred to according to their status in the suit for specific performance. The defendant/respondent died pending the appeal. His legal heirs have been impleaded as additional respondents.

4. Ext.A1 agreement dated 22.03.2006 was entered into between the plaintiff and the defendant. As per Ext.A1, the defendant agreed to convey 10.258 cents of property with the buildings thereon to the plaintiff. The total sale consideration fixed was Rs. 30,50,000/-. The period fixed for performance was four months. On the date of the agreement an amount of Rs. 10 lakhs was paid as advance sale consideration. According to the plaintiff, on 22.07.2006, a further amount of Rs. 5 lakhs was paid towards sale consideration and the agreement was extended for a further period of one month. On the said date the plaintiff was put in possession of a portion of a building. Subsequently on 04.08.2006, the plaintiff paid a further advance amount of Rs. 5 lakhs. On the said date another portion of the building was handed over possession to the plaintiff. Thereafter the plaintiff again paid an amount of Rs. 25,000/-towards advance sale consideration. Thus, a total amount of Rs. 20,25,000/-was paid as advance sale consideration. Alleging that the defendant is evading performance of the agreement, the suit was filed.

5. The defendant admitted Ext.A1 agreement. The receipt of Rs. 10 lakhs as advance sale consideration on the date of execution of Ext.A1 agreement was also admitted. Though he also admitted the receipt of a further amount of Rs. 10 lakhs, he denied the plaintiff's case that Rs. 5 lakhs was paid on 22.07.2006 and another Rs. 5 lakhs on 04.08.2006. According to him, an amount of Rs. 10 lakhs was paid on 04.08.2006. He has also denied the receipt of the alleged further advance of Rs. 25,000/-. It was also contended that, the extent of property agreed to be conveyed under Ext.A1 was only 10.258 cents and that the description of the property in the plaint is not correct. Defendant further contended that, the plaintiff was not ready and willing to perform the contract, that he was not possessed of sufficient funds to proceed with the agreement and that the defendant was constrained to rescind the contract.

6. OS 58/2007 was filed by the defendant to get back possession of the property handed over to the plaintiff subsequent to the entering into Ext.A1 agreement.

7. The trial court held that there is no sufficient plea of readiness and willingness of the plaintiff to proceed with the agreement, which is a mandatory requirement under Section 16(c) of the Specific Relief Act, 1963. The defendant's plea of rescission of contract was held against. The Court found that the defendant did not perform fully his part of the obligations under Ext.A1. However, it further found that the breach of the contract resulted consequent on the conduct of the plaintiff also. It was also held that, due to governmental restrictions there is impossibility of performance. Accordingly, the court declined the relief for specific performance and directed return of the advance sale consideration. The plaintiff was directed to surrender possession, on the defendant depositing the advance sale consideration.

8. Heard Sri.K.V.Sohan, learned counsel for the appellant-plaintiff and Smt.Sanjeetha K.A., learned counsel for the respondent. The points that arise for considera