Specific performance requires continual readiness and willingness to fulfill contractual obligations; consent from co-owners must be secured for the contract to be enforceable.

JUDGMENT :

N. SATHISH KUMAR, J.

Challenging the decree and judgment passed by the learned Principal District Judge, Krishnagiri, in O.S.No.39 of 2012, dated 06.01.2015, granting specific performance, the present appeal has been filed by the 1^st defendant in the suit.

2.For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3.Brief facts of the case are as follows :

A sale agreement, dated 25.07.2010, came to be entered between the plaintiff and the 1^st defendant for sale of the suit property at the rate of Rs.14,50,000/- per Acre. The total area agreed to be sold is 5.15 Acres. Further, it is also agreed between the parties that a sum of Rs.14,50,000/- per Acre will be paid as per the actual measurement. On the date of agreement, an advance of Rs.1,00,000/- has been paid by the plaintiff. It is also the case of the plaintiff that, at the time of agreement, the 2^nd defendant, who is the only daughter of the 1^st defendant, was staying in USA and the 1^st defendant gave assurance to make arrangement to get back her at the time of registration of sale deed. Despite the request made by the plaintiff, the 1^st defendant postponed the survey. However, he has received a further sum of Rs.4,00,000/- on 15.08.2010; Rs.5,00,000/- on 18.09.2010; and Rs.10,00,000/- on 27.10.2010. Having received a total sum of Rs.20,00,000/- towards sale consideration, the 1^st defendant was postponing the sale under the pretext that he will execute the sale deed after his daughter returns from USA. According to the plaintiff, though time of three months was fixed in the agreement, time was never intended to be the essence of the contract. The plaintiff was always ready and willing to perform his part of the contract. It is the further contention of the plaintiff that, though the sale agreement was entered for 5.15 Acres, on the contrary, only 3.31 ½ Acres was actually available on ground. The plaintiff was also approaching the 1^st defendant through mediators. However, the defendant was postponing the sale. Hence, the plaintiff issued a legal notice, dated 01.11.2011, and the same was replied by the 1^st defendant with false allegations. Immediately, the 2^nd defendant also issued a legal notice to the plaintiff on 12.04.2011, stating that she has also got right over the sale agreement properties and that the sale agreement will not bind her. Hence, the plaintiff filed the present suit for specific performance to enforce the sale agreement dated25.07.2010.

4.Admitting that there is a sale agreement, it is the contention of the1^st defendant that the 2^nd defendant has also got a share in the property. It is his contention that it was agreed to sell only S.No.460/1, whereas, in the plaint, the plaintiff has sought for enforcement of contract in respect of S.Nos.458/2 and 472. Further, it is his contention that, though he has entered into an agreement, it was agreed that sale can be executed only when his daughter/2^nd defendant consents for such sale, since she was residing at Chicago, USA. After she returned from USA, she has not agreed for sale of the property and requested the 1^st defendant to rescind the suit agreement. Accordingly, the suit agreement was rescinded by notice. It is also his contention that the plaintiff was never ready and willing to perform his part of the contract. Hence, he opposed the suit.

5.Based on the above pleadings, the trial Court framed the following issues :

(1) Whether the 2^nd defendant was an unnecessary party to the suit ?

(2) Whether there is no connection between the properties mentioned in the agreement and the suit sc