important point
Where in a evil for specific performance, conclusions of High Court were contrary to pleadings about plaintiff’s readiness and willingness to fulfill their part of obligation, then they were held to be unsustainble.

judgment

Dr. Arijit Pasayat, J. –

1.Challenge in these appeals is to the judgment of a Division Bench of the Kerala High Court.

2.Background facts need to be noted in some detail. Two suits were filed for specific performance of agreement to sell the suit properties. Appellant No.1 is the plaintiff in OS No. 11 of 1997 which was filed in the Sub Court Mavelikara on 23.2.1987. Appellant No. 2 is the plaintiff in OS No. 17 of 1987 which was filed on 28.2.1987. The three defendants were common to both the suits. Defendant no.1 is defendant No.2’s brother’s son and defendant No. 3 is the wife of defendant No. 2. Defendant No. 3 obtained the property mentioned in the two suits under an exchange of properties between her and her husband i.e. defendant no.2. She mortgaged the properties to the Kerala Financial Corporation Limited. Sometime in 1970 defendant No.3 executed a Power of Attorney in favour of her husband-defendant No.2 authorising him to deal with the property. On 17.5.1974 defendant No.2 sold portions of the property to defendant No.1 acting on the power conferred by the power of attorney vide Exhs. A 8 and A 18. Subsequently on 12.8.1974, defendant No.3 cancelled the power of attorney. In 1979 the defendant No.1 executed a power of attorney authorising defendant No. 2 to deal with the property. On the basis of such power of Attorney he entered into an agreement with appellant No. 2 on 6.8.1979 to sell 3.5. cents of the property and the structures for a price of Rs.32,000/-. An advance of Rs.10,000/- was paid. Appellant No. 2 was then the tenant of the possession of the structure and had paid Rs.7,000/- as security. It was agreed that the amount shall be adjusted against part payment of the price fixed and appellant No. 2 was to pay Rs.15,000/- as the balance consideration. The agreement indicated that possession was delivered to appellant No.2.

On 20.8.1979 defendant No.2 as power of attorney holder entered into an agreement to sell 7.5 cents of property with structures to appellant No. 1 for consideration of Rs. 43,500/-, out of which Rs.27,000/- was paid as advance. Appellant No. 1 was already in possession of the structure as tenant. The terms of the agreement i.e. Exh.A1 are similar to those as Exh. A14. Since defendant no.3 did not discharge the dues to the Financial Corporation, recovery proceedings were started and the rent payable by the appellant was attached. It appears thereafter there was a dissension amongst the defendants and Defendant No.3 filed a suit (OS No. 42 of 1982) challenging the sales made by Defendant No. 2 to defendant No. 1. The appellants were not parties to the said suit. Defendant No. 1 took the stand that the sales in favour of defendant No. 2 as power of attorney holder was valid and defendant No. 3 was not entitled to the relief prayed. Thereafter the dispute was settled recognizing the rights of defendant No.3. She undertook to honour all commitments made by defendant no. 2 in respect of the property. In 1986 appellants called upon the defendants to execute the sale deed in their favour. A reply was given on 13.11.1986 refusing to execute the sale deeds. Two suits were filed, as noted above, for specific performance. There were clear averments to the effect that the appellants were and are always ready and willing to perform their part of the agreement. The defendants 1 and 3 contested the proceedings. It was their stand that the agreements sued on, namely Exhs. A 1 and A19 are not valid and binding on the defendant. A plea of limitation was also taken. But there was no denial to the plea regarding readiness and willingness. There was specific reference to the earlier disputes between the defendants. The trial court by judgment and decree dated 19.3.1992 dismissed the suit as barred by limitation after holding on merits that the agreements are valid and binding the defendant. The plaintiffs filed separate appeals in the High Court. Defendant No.3 also filed separate memo of cross- objection