Factual circumstances weigh against grant of discretionary relief.

M.CHOCKALINGAM, J.

The first defendant is the appellant herein.

2. This appeal has arisen from the judgment and decree of the learned Subordinate Judge, Erode granting a decree for specific performance in favour of the first respondent/plaintiff.

3. The case of the plaintiff as set out in the plaint is as follows:

The 2nd defendant is the only son of the 1st defendant, and they are members of Hindu joint family. The suit survey field is the ancestral property of the defendants 1 and 2, who are in possession and enjoyment of the suit property. On 9.12.1980, a written agreement for sale was executed by the defendants 1 and 2 agreeing to sell half share in the suit property for Rs.45,000/- to the plaintiff. The plaintiff paid an advance of Rs.7,500/-. Since the sale transaction could not be completed, another agreement of sale was made on 2.6.1981, and it was also registered. The said advance amount was taken over as part of the advance for the agreement dated 2.6.1981. The defendants 1 and 2 received another sum of Rs.3,500/- as additional advance, making in all Rs.11,000/- as advance. As per the agreement, the plaintiff is to pay Rs.34,000/- being the balance of sale consideration on or before 1.12.1981. The plaintiff has got sufficient means to purchase the properties and has been ready and willing to perform her part of the contract. The 2nd defendant wanted additional advance of Rs.4,000/-, and an endorsement was made on the agreement on 28.11.1981, wherein the 2nd defendant has signed. It was agreed that the additional advance of Rs.4,000/- is to be paid after getting the endorsement signed by the first defendant, but the 1st defendant refused to sign the endorsement. Since the defendants 1 and 2 failed to execute the sale deed, the plaintiff issued a notice on 29.11.1981. On 29.2.1984, she issued another notice to the defendants 1 and 2. The defendants 1 and 2 sent a reply notice making false allegations. She came to know that the 1st defendant executed sale deeds over small plots along the road margin in favour of the defendants 3 and 4 on 31.8.1984. Those sale deeds are sham and nominal and not supported by consideration. She is entitled to get a registered sale deed executed by the defendants. The defendants 3 and 4 could not claim right and title to the sites purchased by them as the right of the plaintiff prevails. Hence this suit.

4. The suit was resisted by the first defendant by filing a written statement with the following averments:

On 16.9.1944, the father of the first defendant Chennimalai Gounder sold an extent of Ac.4.19 in G.S.No.306/2 to the first defendant and his brother Kandasamy. On 10.6.1968, Kandasamy Gounder sold his half share to the first defendant. The first defendant and his brother Kandasamy did not have any joint family nucleus. The said property is the separate property of the first defendant, in which the second defendant has no right, title and interest. Even in the agreement of sale, the first defendant has stated that the suit properties were his self acquired properties. The agreement dated 9.12.1980 is admitted. The plaintiff agreed to tender the balance of sale consideration of Rs.37,500/- within six months from 9.12.1980 i.e. on or before 8.6.1981. Time was the essence of the contract. The plaintiff failed to tender the said balance of sale consideration. Thus, the plaintiff has committed breach of contract. Even before the expiry of six months, the plaintiff expressed her inability to perform her part of the contract and requested further extension of time. A fresh agreement of sale was executed on 2.6.1981 whereby the plaintiff paid Rs.3,500/- making up total advance of Rs.11,000/- and agreed to tender the balance of consideration of Rs.34,000/- on or before 1.12.1981. She again committed default, committed breach of contract and failed to tender the balance of sale consideration. The sum of Rs.11,000/- was paid as advance to be forfeited in case of default. The second defenda