Relinquishment can be made at any stage of litigation.

This Letters Patent Appeal is preferred by the 1st defendant against the judgment of Ramakrishnan, J., modifying the decree of the trial Judge and directing the 1st defendant to execute a sale-deed in favour of the plaintiff in respect of item 1 of the plaint schedule properties on receipt of Rs. 4,750 in pursuance of the agreement to sell items 1 and 2 of the plaint schedule to the plaintiff. One Loganatha Mudaliar was the original owner of these two items of properties He purchased item 1 in his name and item 2 in the name of his wife Rathnammal. He had two sons, the first defendant and the husband of the second defendant His wife died in the year 1947, and he died in the year 1955. It was alleged in the plaint that the defendants in the suit entered into an oral agreement on 7th February 1957 to convey the two suit items for Rs. 5,750 and subsequently an agreement of sale was executed by both the defendants and a sum of rupees one thousand was paid as advance. According to the terms of the agreement the sale had to be completed within three months failing which the defendants had to pay to the plaintiff a sum of rupees five thousands as and for damages to plaintiff. Before the plaintiff entered into the agreement to purchase these two items of properties, he made an enquiry in respect of the second item as it was purchased in the name of the 1st defendant’s mother and the first defendant assured the plaintiff that his sisters would not claim these properties as they had already declared that they had no interest or title in the properties. The plaintiff was ready and willing to purchase these properties The defendants subsequently evaded and neglected to execute sale-deed. The first defendant began to give out an excuse that his sisters were not willing to loin with him in executing the sale deed, especially in respect of item 2, as they claimed title to the same on the ground that it belonged to their mother. It was also stated in the plaint that in case there was any difficulty for the defendants to execute a sale deed in respect of item 2 also, the plaintiff was willing to take a conveyance of item 1. The plaintiff also prayed that in the event of the Court holding that specific performance of the contract cannot be ordered, the defendants may be directed to pay the plaintiff rupees five thousands as liquidated damages. The plaintiffs prayed in the alternative that the defendants may be directed to receive a sum of rupees three thousand and effect a conveyance of item 1 of the plaint schedule property and pay such compensation for the non-conveyance of item 2 as the Court may fix.

The 1st defendant filed a written statement denying the oral agreement He stated that the written agreement was not read over to him and he was not aware of the contents of the document, as he was not well acquainted with or aware of the language in which the document was written. According to him under the Will of his father he got only item 1 and item 2 of the plaint schedule was bequeathed to his sisters and one Panchalamma and he had neither title nor interest in respect of item 2 and, therefore, he could not convey item 2 to the plaintiff. He also denied having received an advance of rupees one thousand through Jagadeesa Mudaliar He contended that in any event the plaintiff cannot ask for specific performance as the contract could not be performed in entirety. The second defendant filed a separate written statement supporting the case of the first defendant. She stated that she was not in Madras at the time the alleged agreement was executed. She further stated that neither she nor the first defendant had any interest in the second item of property.

It is on these pleadings the parties went to trial and the important questions for consideration were, whether the plaintiff is entitled to specific performance of the agreement when the first defendant has no title to the second item of property and whether the agreement executed