Mr. K. Kannan, J. (Oral):- The following substantial questions of law arise for consideration this second appeal:-

1. Whether the courts below were justified in refusing the relief of specific performance, having found the agreement to be true when the specific performance and not damages is the only adequate relief under Section 10 of the Specific Relief Act?

2. Whether the courts below were not in error in finding the purchase in the names of defendants No. 3 to 5 as bona fide when the vendors were not in possession of the property and the plaintiffs being in possession as mortgagees along with subsequent purchasers, the latter were bound by constructive notice that the plaintiffs had some interest even apart from the mortgage and that a purchase without inquiring with the plaintiffs cannot be said to be bona fide?

2. The plaintiffs are the appellants before this court. The plaintiff’s suit for specific performance of the agreement of sale by defendants No. 1 and 2 on 9.6.1980 for a consideration of Rs. 32,000/- was decreed only for the relief of refund of the earnest money of Rs.1,000/- paid by the plaintiffs. In the appeal by the plaintiffs, the plaintiffs’ claim was again dismissed on a different line of reasoning adopted that defendants No. 3 to 5 were subsequent purchasers for value without notice of the agreement in favour of the plaintiffs.

3. The plaintiffs and defendants No. 3 to 5 were already mortgagees in respect of the same property, each holding a half share. The recital in the agreement was that out of the sale consideration of Rs.32,000/-, Rs.1,000/- was paid as earnest and Rs.11,000/- was to be adjusted towards the money payable for redeeming the mortgage and the balance of consideration was to be paid on 20.6.1980 on completion of the sale. Defendants No. 1 and 2 executed a sale on 3.7.1980 for the very same consideration of Rs.32,000/- in favour of defendants No. 3 to 5. The plaintiffs’ contention was that the plaintiffs’ father and the 6th defendant were brothers. The 6th defendant himself was the father of defendants No. 3 to 5. The contention was that the agreement in favour of the plaintiffs was known to the defendants, but they had still secured a purchase which was not bona fide. Both the courts have found the agreement of sale in favour of the plaintiffs to be true. The denial of the relief has come only by the fact that the trial court found that on account of subsequent purchase, the plaintiffs could be rewarded only the relief of refund of earnest money while the lower appellate court found that defendants No. 3 to 5 had not known the agreement of sale and, therefore, their sale must be protected.

4. If the agreement of sale in respect of immovable property was established, then the relief of specific performance ought to be taken as the only appropriate remedy, unless the governing consideration under Section 20 of the Specific Relief Act in the manner of discretion was that the plaintiffs had disentitled themselves by any conduct ill deserving for the relief of specific performance. Section 10 of the Specific Relief Act states through an explanation that unless and until the contrary is proved, the breach of contract of transfer of immovable property could not be relieved by compensation and the specific relief is the only appropriate remedy. The plaintiffs were, therefore, entitled to a specific relief unless, as we have observed, either that the subsequent purchasers were bona fide purchasers for value without notice or the court’s discretion cannot be exercised by any of the parameters laid down under Section 20 of the Specific Relief Act.

5. In this case, bona fides of the purchasers must be examined from the context of how the vendors themselves were not parties in possession at the time of agreement and at the time of subsequent sale. The plaintiffs and defendants No. 3 to 5 were in joint possession of the property as mortgagees. They were residents of the same village. The burde