Addition of parties whether proper or necessary party.

L.S. Sadagopan, the appellant herein, is the defendant in the suit in O. S. No. 2549 of 1981on the file of the VI Additional Judge, City Civil Court, Madras filed by K. S. Sabarinathan, the respondent herein, for specific performance of the agreement to sell dated 14-5-1973. Since the suit was decreed in favour of the respondent/plaintiff, the same is challenged in this appeal by the appellant/defendant.

2. The case of the respondent/plaintiff is as follows :-

"(a) The defendant/appellant was allotted with Plot No. 477 in K. K. Nagar by the Tamil Nadu Housing Board on 1-4-1969. On his request, the respondent/plaintiff advanced the full amount and paid the same to the Housing Board. Thereafter, the defendant mortgaged the plot to the Madras City Cooperative House Mortgage Society Limited for Rs. 25, 000/- for putting up a construction on the plot.

(b) On 14-5-1973, the defendant entered into an agreement with the plaintiff by which the defendant agreed to transfer the plot to the plaintiff, as the plaintif already paid the full amount to the Housing Board and also agreed to discharge the above said mortgage.The plaintiff also agreed to pay further installments to the Housing Board.

(c) In terms of the said agreement, the defendant delivered possession of the plot to the plaintiff. Accordingly, the plaintiff discharged the said mortgage and paid the installments due to the Housing Board. Though the plaintiff performed his part of the contract, the defendant was not willing to transfer the plot and since he was evading to execute the sale deed under some protest or other, the plaintiff filed the suit seeking for specific performance of the agreement."

3. The case of the appellant/defendant is as follows :-

" Originally, the plot was allotted to the wife of the defendant and she paid 25 per cent of the cost of the plot on 9-5-1968 to the Housing Board. The defendant was paying the balance installments for the lot. The plaintiff did not advance any money for the plot. The defendant discharged the mortgage in favour of the Madras City Co-operative House Mortgage Society. He did not enter into any agreement on 14-5-1973 with the plaintiff. The defendant put up construction in the plot with his own money. Since the construction work was entrusted to the plaintiff, he was permitted to occupy the portion of the plot. The plaintiff did not pay any money for the said plot. Therefore, the suit is liable to be dismissed."

4. On the basis of the above pleadings, the following issues were framed in the trial Court.

(1) Whether the agreement dated 14-5-1973 is true, valid and executed by the defendant?

(2) Whether the payment of Rupees 51, 000/- to the defendant, in pursuance of the agreement alleged by the plaintiff, is true?

(3) Whether the plaintif has performed his part of the agreement?

(4) Whether the plaintiff has been ready and willing to perform his part of the contract?

(5) Whether the plaintiff is entitled to the relief of specific performance of the suit agreement?

5. During the course of trial, on behalf of the plaintiff, P.Ws. 1 and 2 were examined through whom Exs. A-1 to A-75 were marked. On the side of the defendant, he examined himself as D.W. 1 and Exs. B-1 to B-17 were marked.

6. On consideration of the entire materials, the trial Court decreed the suit by judgment dated 23-7-1986 holding that the plaintiff would be entitled to specific performance and directed the defendant to execute the sale-deed in favour of the plaintiff in respect of the suit plot in pursuance of the agreement dated 14-5-1973. Challenging the said judgment and decree, the defendant has filed this appeal before this Court.

7. During the pendency of the appeal, the appellant/defendant died. Therefore, his wife Jayalakshmi filed a petition in C.M.P. No. 3791 of 1994 and by order dated 9-3-1995 of this Court, she was brought on record as the legal representative of the deceased appellant.

8. Before the appeal was taken up for final disposal, one Ashok Kumar