A sale agreement executed by only one co-owner is defective and cannot support a claim for specific performance, which necessitates establishing readiness and willingness separately.

JUDGMENT :

G.JAYACHANDRAN, J.

The Appeal is directed against the decree for specific performance passed in O.S.No.34 of 2013 on the file of the District Judge, Nilgiris.

2. The subject matter of the suit is the sale agreement dated 04.02.2011 entered between the plaintiff Mrs.M.Vijayam (purchaser) and Mr.N.R.Rajan (vendor), in respect of 14.34 acres out of 10.43 acres of tea garden situated at Coonoor.

3. The averment in the plaint in brief are as follows:

The first defendant is the absolute owner of the suit property. He got the property through the family arrangement between himself and his family members. The first defendant offered to sell the property to the plaintiff free from all encumbrances for a total consideration of Rs.10,00,000/-. The plaintiff accepted the offer and entered into an agreement on 04.02.2011. The part of the sale consideration of Rs.5,00,000/- already paid in cash and the balance sale consideration of Rs.5,00,000/- was paid by cheque on the date of the agreement.

4. After agreement and passing of full consideration, the first defendant handed over the originals of title deeds, the death certificate of his mother, legal heir certificate, the chitta and a notarised affidavit from the father and sisters of the first defendant authorising the first defendant to sell the property. He has also executed a General Power of Attorney (GPA) as a mark of receiving the full consideration and giving power to deal with the property to one Mr.A.Krishnan. The said General Power of Attorney was registered on the same day at the Sub Registrar Office, Coonoor.

5. A period of three months time was fixed for completion of the sale transaction, subject to the demarcation of the property agreed to be conveyed and to put in possession of the plaintiff. However, on 4^th May 2011, the first defendant sought further time till 30^th April 2013 for demarcating the land and made an endorsement to that effect on the back of the sale agreement. Thus, it is evident that time was not the essence of the contract. The land proposed to be conveyed was demarcated in the month of October 2011 and handed over to the plaintiff on 30^th October, 2011. The time to execute the sale deed was extended for further period and the same was duly endorsed in the sale agreement.

6. The plaintiff was always ready and willing to complete the sale transaction and was consistently approaching the first defendant, requesting him to execute the sale deed as agreed. However, the first defendant evading the request and neither came forward to give confirmation affidavit stating that the General Power of Attorney given to Mr.A.Krishnan is still in force and the approved life certificate for the plaintiff to get the sale deed registered through his Power Agent. The legal notice dated 27.04.2013, calling upon the first defendant to perform his part of sale agreement, was received by the first defendant without any demur. Hence, the suit was filed for specific performance of the agreement to execute the sale deed, or in alternate, for a direction to refund the sale consideration of Rs.10,00,000/- with interest at 12 % per annum.

7. After the institution of the suit, the plaintiff came to know that the first defendant had sold a larger extent of property including the suit property to third parties under two different sale deeds. These transactions were created to defraud the plai