Venkatarama Ayyar, J.-The plaintiff is the appellant. He filed O. S. No. 35 of 1946 on the file of the Court of the Subordinate Judge of Mathurai for specific performance of an agreement to sell certain immoveable properties by defendants 1 to 3. Defendants 1 and 2 are brothers and members of a joint family and the first defendant is its manager. The 3rd defendant is the mother of defendants I and 2. The properties which are the subject-matter of the agreement are two godowns in Mathurai. Under Exhibit P-3, dated 30th June, 1937, the defendants had executed a usufructuary mortgage over those properties in favour of one Somasundara Nadar for Rs. 8,000 and a period of ten years was fixed for redemption. On 20th March, 1943, the defendants entered into agreement with the plaintiff, Exhibit P-4 which is the subject-matter of the present suit. Under Exhibit P-4 they agreed to sell the two godowns to the plaintiff for a consideration of Rs. 13,500. A sum of Rs. 750 was paid as advance. Deducting Rs. 8,000 which had to be paid for the redemption of the usufructuary mortgage, Exhibit P-3, the balance of Rs. 4,750 was to be paid at the time of the registration of the document and the transaction completed within one month. The second defendant was a minor at the date of the transaction and the 3rd defendant signed the agreement as his guardian and also on her own behalf. The case of the plaintiff is that about a week later a draft sale deed was prepared in consultation with the defendants, that it was approved by the 1st defendant and D. W. 3 and that a fair deed was actually engrossed on stamp paper on 16th April, 1943. Exhibit P-5 is the fair deed. It is stated by the plaintiff that this document was presented to the defendants for execution but they were putting it off. On 18th April, 1943; the plaintiff sent a wire, Exhibit P-6 and on 19th April, 1943, this was followed by a notice, Exhibit P-7. Therein the plaintiff called upon the defendants to execute the sale deed, register it and receive ‘the balance of consideration. The defendants replied by wire Exhibit P-8 and notice, Exhibit P-10 both dated 19th April, 1943. They stated that the plaintiff had also agreed to execute a deed of indemnity in respect of any claim that might be made against them personally by the mortgagee under Exhibit P-3 and that they were willing to execute the sale deed if the plaintiff would execute the indemnity bond. The plaintiff denied that there was any agreement to execute an indemnity bond and by reason of this dispute the sale deed remained unexecuted. On 21st January, 1946, the plaintiff sent a lawyer’s notice to the defendants again calling upon them to execute the sale deed within two days, Exhibit P-11 The defendants replied by Exhibits P-12, P-12(a) and P. 12(b) and therein it was alleged that the agreement, Exhibit P-4 was not binding on the 2nd defendants because there was no necessity for the sale and that accordingly the transaction was unenforceable in its entirety; that the consideration mentioned in Exhibit P-4 was inadequate and that the defendants had been duped into entering into the transaction by the plaintiff. The plaintiff replied by filing the suit on 20th February, 1946, for specific performance of the agreement Exhibit P. 4 or in the alternative for damages.

The suit was resisted by the defendants on the following grounds (1) It was pleaded that the plaintiff had agreed on 20th March, 1943, that he would execute an indemnity bond in respect of any possible claims by the mortgagee under Exhibit P-3 and that as the plaintiff denied the agreement he was in default and the contract had been broken by him.

(2) The agreement was not binding upon the 2nd defendant who was a minor because there was no necessity for sale and that, therefore, the agreement could not be enforced even against the 1st defendant.

(3) The plaintiff was guilty of inordinate delay and laches and that therefore the Court should in its discretion refuse him relief

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