Delay is not ground to refuse of specific performance unless it is a case of waiver.

JUDGMENT: Defendants 1, 2 and 11 in O.S.58 of 1991 on the file of Sub Court, Mahe are the appellants.

2. The material facts necessary for the disposal of this appeal could be summarised thus: Plaint scheduled property originally belonged to one Kumaran as per Kuzhikkanapattam (lease) dated 11.4.1937. On the basis of that document, Kumaran put up constructions. While so, as per Ex.A-1, dated 29.5.1967, he executed a settlement in the nature of gift in favour of four of his children (1) Leela Raghvan, (2) Ramachandran, (3) Jayaraman, and (4) Sivaraman. Kumaran had other children also and they are Hayna Gangadharan and K.K.Vijayan. At the time of his death, Kumaran had also left his widow Rohini.

3. On 29.11.1987, Leela, Ramachandran, Jayaraman, widow of Sivaraman representing herself and her minor children, executed Ex.A-2 agreement for sale in favour of plaintiff. Leela and Ramachandran are defendants 1 and 2 in the suit. After execution of the agreement, Jayaraman also died and his legal representative are defendants 3 to 6.

Widow and children of Sivaraman are defendants 7, 8 and 9 of whom, defendants 8 and 9 were minors on the date of suit. As stated earlier, widow of Kumaran was alive at the time of settlement, Ex.A-1. But before Ex.A-2 agreement for sale was executed, Sivaraman, one of the sons died and his 1/4th right in the property devolved on his mother and defendants 7 to 9. In the agreement for sale, the executants did not say anything about the right of Rohini as one of the legal heirs of Sivaraman. Rohini also died and the share which she inherited from her son devolved on the children of Sivaraman. They are defendants 1 and 2 and defendants 10 and 11 are also children of Jayaraman and Sivaraman.

4. As per the agreement for sale, executants agreed that the occupant of the building will have to be evicted and since defendants 8 and 9 were minors, permission has to be obtained from Court for alienating their share. One year period is also provided to complete the transaction. Total consideration agreed was Rs.5,67,500 out of which Rs.25,000 was paid as advance.

5. It is the case of plaintiff that 7th defendant, who is the guardian of defendants 8 and 9 did not take any steps for getting permission from the Court. It is also alleged that the occupant of the building is not a tenant though that was the representation made. In fact, occupant was 11th defendant in the suit, who is also one of the co-owners and legal heirs of Rohini. Even after expiry of one year when no steps were taken to execute the sale deed, plaintiff issued a registered notice on 11.11.1988 evidenced by Ex.A-3 asking defendants to execute sale deed in terms of the contract. A reply was sent by first defendant admitting the agreement but pleading inability to execute the sale deed. After notice, suit was laid in October, 1991.

6. Plaintiff has alleged that since 7th defendant has not taken Court permission as against defendants 8 and 9, plaintiff is not claiming any right. It is also alleged that even before agreement for sale, Rohini was dead and her legal heirs apart from executants are defendants 10 and 11 from whom plaintiff has not taken any agreement. So, as against them also agreement cannot be enforced. Plaintiff wanted to enforce the agreement as against defendants 1 to 7 i.e., 81/96 share on payment of proportionate sale consideration, i.e., Rs.4,78,828. Plaintiff alleged that he was all along willing and ready to take the document and continues to be ready to take the document in terms of the agreement.

7. In the written statement filed by the first defendant, she admitted that there is agreement for sale. But according to her, 11th defendant is residing in the building along with his son and he being co-owner, he could not be evicted merely because of agreement for sale executed by her along with others. It is her further case that even though they attempted to get 11th defendant evicted, he was not prepared to vacate the building nor he was prep

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