K. Selvadas v. A.M. Abdulkhader and others (R.F.A. No. 678 of 2007)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, ``` ``` 1945 ``` ## **`RFA NO. 678 OF 2007`** ``` AGAINST THE JUDGMENT DATED 05.02.2007 IN OS NO.74 OF 1994 ``` ``` OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM ``` ## **`APPELLANT/ADDL.2ND DEFENDANT:`** ``` K.SELVADAS, RESIDING AT BABY COTTAGE, MAVARATHALAKONAM, SREEKARYAM P.O., THIRUVANANTHAPURAM - 695 017. ``` ``` BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON ``` ## **`RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:`** ``` 1A.M.ABDULKHADER S/O.ABDUL RAHMAN VAIDYAN, AGED 56, RESIDING AT NIZAM MANZIL, MAZHUVADIMURI,, THEKKADA VILLAGE, NEDUMANGAD TALUK - 695 541. *2RAGHAVAN PILLAI S/O.KUMARA PILLAI(DIED) AGED 80, RESIDING AT KRISHNA BHAVAN, VENCHAVODE, SREEKARIYAM MURI, PANGAPPARA VILLAGE, THIRUVANANTHAPURAM TALUK, PIN - 695 017. ADDL.3R. KOMALAM, ANATHANATHU MELEPUTHEN VEEDU, T.C. 21/1044, NEDUNGADU, KARAMANA, THIRUVANANTHAPURAM. ADDL.4OMANA AMMA, MECHERIKONATHUVEEDU, KUZHIKATTUKONAM, SREEKRISHNAPURAM, VATTAVILA, POWDIKONAM P.O. ``` - **`ADDL.5 R. RADHAKRISHNAN NAIR, ANATHANATHU MELE PUTHEN VEEDU, T.C. 21/1044, NEDUNGADU`** - **`ADDL.6 R. RAJENDRAN NAIR, ANATHANATHU MELE PUTHEN VEEDU, T.C. 21/1044, NEDUNGADU`** R.F.A. No. 678 of 2007 -:2:- ``` ADDL.7R. KRISHNA KUMAR, MACHERIKONATHU VEEDU, KUZHIKATTUKONAM. ADDL.8BHAKTHIKUMAR, MACHERIKONATHU VEEDU, KUZHIKATTUKONAM. (LEGAL HEIRS OF DECEASED R2 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 8 AS PER ORDER DATED 04.07.2013 IN I.A. NO.1405/2012) BY ADV SMT.S.MUMTAZ SHAMSUDDHIN ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 01.08.2023, THE COURT ON 18.12.2023 DELIVERED THE FOLLOWING: ``` R.F.A. No. 678 of 2007 -:3:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## R.F.A. No. 678 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of December, 2023 ## **JUDGMENT** The appeal on hand is originated from judgment passed by First Additional Sub Judge, Thiruvananthapuram on 05.02.2007 in O.S. No.74/1994. The parties to this appeal will hereafter be referred to as the plaintiff and 1[st] defendant and additional 2[nd] defendant in accordance with their status in the Original Suit. 2. The suit was filed by the 1[st] respondent seeking reliefs as follows :- “1. To grant a decree allowing the plaintiff to deposit the balance amount of `1,00,000/- before the court to execute the sale deed in favour of the plaintiff for a total sale consideration of `1,50,000/- and directing the defendants 1 and 2 to execute the sale deed in favour of the plaintiff. 2. In case the defendants 1 and 2 fails to execute the sale deed in favour of the plaintiff, the sale deed may be executed in receipt of the sale consideration through this court at the cost of the plaintiff. 3. To grant a decree allowing the plaintiff to realise the entire costs, including the advocate fees of the suit from the defendant's 1 and 2 and their assets; 4. As an alternate prayer, the plaintiff may be allowed to realise the advance amount with 18% interest R.F.A. No. 678 of 2007 ## -:4:- and the compensation for breach of contract from the defendants 1 and 2 their assets and a charge may be created over the plaint schedule properties for the realisation of the said amount. 5. To put the plaintiff in possession of the plaint schedule properties by severing all the rights, title and possession of the defendant's 1 and 2 over it from the date of the sale deed. 6. To grant such other reliefs which the plaintiff may pray for and the court deems fit and proper in the interest of justice.” 3. Originally when the suit was filed, only one defendant was there and during its pendency two more defendants were also impleaded as additional defendants 2 and 3. Additional 2[nd] defendant was impleaded for the reason that, the original defendant had sold the plaint schedule properties to him. Additional 3[rd] defendant was none other than the wife of the original defendant who had obtained an order from the Family Court directing him to pay maintenance to her. 4. The plaintiff had taken up pleadings in the plaint as follows: An agreement for sale was executed by himself and the 1[st] defendant on 03.06.1993 to sell the plaint schedule properties belonging to the latter in his favour on or before 10.01.1994. A R.F.A. No. 678 of 2007 -:5:- sum of `1,50,000/- was agreed to be paid as total sale consideration. `50,000/- was paid as advance at the time of execution of the agreement for sale itself and the balance amount of `1,00,000/- was agreed to be paid on or before 10.01.1994. Though the date for performance of contract was stated in the agreement as 10.01.2014, the parties never intended that the time is the essence of the contract. The 1[st] defendant had to furnish and entrust the original documents, non-encumbrance certificates and other relevant records connected with the plaint schedule properties to the plaintiff within the period stipulted in the agreement and had also to convince him of the exact area and extent of the plaint schedule properties at his own expense, on or before 10.01.2014. It was agreed that in case of default of the 1[st] defendant the plaintiff is entitled to proceed legally against the former seeking for a decree of specific performance of the contract after paying the balance sale consideration. The plaintiff approached the 1[st] defendant several times demanding measurement of properties and issuance of all original documents pertaining to the properties. But, the 1[st] defendant evaded from doing so. The 1[st] defendant was reluctant even to accept the balance sale R.F.A. No. 678 of 2007 -:6:- consideration of `1,00,000/- when the plaintiff tendered the same to him. 5. The plaintiff was ready and willing to purchase the plaint schedule properties after paying the balance sale consideration of `1,00,000/-. Therefore, he issued a notice through his counsel to the 1[st] defendant on 04.01.1994 requesting the latter to intimate the date for execution of the sale deed by accepting the balance sale consideration. It was not responded to fruitfully. Though the plaintiff waited at the office of a document writer Mr.Vijayan near Sub Registry office, Chalai at 9.30 a.m. on 10.01.1994 expecting the arrival of the 1[st] defendant there to register the deed, the latter did not turn up. Reply was also not sent to the notice received. Therefore, the suit was filed. 6. The first defendant has denied all averments of the plaintiff and raised contentions to the effect that an agreement for sale was not executed by him with the plaintiff, that the document depicting agreement produced by the plaintiff is a fabricated one, that the signature found therein was not put by him, that the plaintiff was seen by him only after service of notice preceding the institution of the suit and therefore, he R.F.A. No. 678 of 2007 ## -:7:- was a total stranger to him, that the suit on hand was filed by one Mr.Rajendran who is the son of the 1[st] defendant and working as an Advocate Clerk in Thiruvananthapuram courts and having association with the offices of several advocates including the one who was the counsel of the 1[st] defendant's and also in the company of the plaintiff who was a frequent visitor to that office, that three items of properties belonging to him and scheduled in the suit on hand were attached in a case seeking maintenance filed by 1[st] defendant's wife Mrs.Komalam as O.S No.139/1977 before Sub Court, for herself and for and on behalf of her minor sons. After attaining the age of majority by the minor sons, the decree was modified confining enjoyment of its benefit to the wife alone. O.S No.426/1986 was filed by the 1[st] defendant against his wife Smt.Komalam and two children, claiming title over 20 cents of property (A schedule) lying contiguously with two other items of properties and contending that he was also prevented from taking yield from the property. 7. Two suits as above were tried jointly and a decree was passed in favour of the 1[st] defendant. Thereupon Smt.Komalam took out proceedings to execute the maintenance R.F.A. No. 678 of 2007 -:8:- decree obtained by her, by way of attachment and sale of 12 cents of property which is the 'C' schedule. The 1[st] defendant avoided the sale of property by not depositing the decree amount. Thereafter another case for maintenance was filed by Smt.Komalam as O.S No.254/1993 before Family Court, Thiruvananthapuram and sought for attachment of the three items of properties belong to the 1[st] defendant. The Family Court permitted the 1[st] defendant to sell 'C' schedule property (12 cents) and ordered attachment of other two items. The 1[st] defendant in the said circumstances sold the property to one Mr.Selvadas on 21.12.1993 by virtue of a sale deed No.4005/1993. The 1[st] defendant's son lodged a complaint before the Police stating that the property was held by him with his father's consent and Mr.Selvadas is only a trespasser. Thereafter he managed to file the present suit against the 1[st] defendant through the plaintiff with a view to grab the property. According to him, reply was sent to the notice and a copy was also produced. Additional second defendant has contended in the written statement in tune with the claims of the 1[st] defendant that three items of properties were owned by him by virtue of three sale deeds executed in his favour and that two R.F.A. No. 678 of 2007 -:9:- Civil suits instituted against the 1[st] defendant by his wife were decided in favour of him by a common judgment. It is further contended that the attachment in respect of 12 cents of property was lateron lifted by the court and allowed to be sold. Accordingly, the same was sold to the additional 2[nd] defendant, by executing a sale deed as 4005/93 and therefore, he is a _bonafide_ purchaser. The property was purchased by him after perusing prior deeds, the common judgment passed in favour of the 1[st] defendant, the Encumbrance Certificate dated 17.12.1993 and the Possession Certificate dated 16.12.1993. In the scrutiny, the attachment of the property and the lifting of the same lateron were noticed by him. It was also informed to him on enquiry made that the 1[st] defendant's son Rajendran has caused to file the suit on hand against the 1[st] defendant in collusion on the basis of a forged document. Thus he raised a claim that he was a bonafide purchaser of 12 cents of property, which is the plaint schedule property. 8. Additional 3[rd] defendant is none other than the wife of the 1[st] defendant and she has raised contentions in her written statement that the suits filed by herself and the 1[st] defendant against her with respect to the plaint schedule property were R.F.A. No. 678 of 2007 -:10:- decreed against her and appeals preferred against were pending before the District Court as A.S. No.45/1993 and 46/1993. In the maintenance case filed by her as O.S. No.254/1993 before the Family Court, Thiruvananthapuram, plaint schedule property and two other properties were attached and lateron the attachment over the plaint schedule property was lifted, following which the Additional 2[nd] defendant and the 1[st] defendant colluded to create a sham document. Additional 2[nd] defendant trespassed into the plaint schedule property and thereupon, she filed a petition before the Fort Police Station and caused a criminal case to be registered against him. Due to the continuous harassment of the Additional 2[nd] defendant and the plaintiff, she also filed a suit for injunction against the plaintiff and the 2[nd] defendant before Munsiffs' Court, Thiruvananthapuram as O.S. No.260/1994. An _ex parte_ order of injunction was obtained by her in the suit. The suit is pending now as O.S. No.959/1994. To wreck vengeance for that and to defeat her in the above suit, the 1[st] defendant and the plaintiff created a sham document and filed the suit on hand, on an experimental basis. The 1[st] defendant has no right to enter into any contract with the plaintiff in respect of the plaint R.F.A. No. 678 of 2007 ## -:11:- schedule property, since she is in absolute possession and enjoyment of the same. It is also contended that the plaintiff is not ready and willing to perform his part of the agreement and has no sufficient money to purchase the plaint schedule property. It was contended furthermore that the plaintiff failed to deposit the balance sale consideration before the Court. ## 9. The trial court framed issues as follows : “(i) Whether the execution of sale agreement by the 1[st] defendant in favour of the plaintiff as alleged in the plaint is true?. - (ii) Whether the sale agreement is supported by consideration? (iii) Whether the plaintiff is entitled to get a decree for specific performance or in the alternative to get a decree to realize the advance money and compensation as prayed for? 10. The plaintiff had adduced oral evidence of himself and a witness respectively as PWs 1 and 2 and marked documentary evidence as Exts.A1 to A6. On the side of the defendant, the 1[st] defendant, a witness and the additional 2[nd] defendant were examined as DWs 1 to 3. Documentary evidence adduced on their side consist of Exts. B1 to B16. 11. The evidence adduced by the parties was appreciated by the trial court and answered all issues in favour of the R.F.A. No. 678 of 2007 -:12:- plaintiff. Accordingly, the suit was decreed in his favour, directing the 1[st] defendant and the additional 2[nd] defendant to execute sale deed in favour of plaintiff in respect of the plaint schedule properties after receiving the balance sale consideration of `1,00,000/- by the 1[st] defendant within 4 months from the date of the decree. On failure to do so by the 1[st] defendant, the plaintiff was also permitted by the decree to execute the sale deed by depositing the balance sale consideration of `1,00,000/- before the court. 12. The aggrieved 1[st] and additional 2[nd] defendants are now before this Court in appeals preferred against as R.F.A Nos.269/2007 and 678/2007. Appellant in RFA No.269/2007 died during the pendency of that appeal and on failure of the legal heirs to continue the appeal it was dismissed as abated on 20.07.2023. 13. The 1[st] defendant preferred R.F.A No.269/2007 as party in person. The 1[st] respondent/plaintiff therein was represented by Adv.V.Suresh and the 2[nd] respondent/ additional 2[nd] defendant was represented by Adv.R.T. Pradeep. 14. Adv.R.T. Pradeep advanced arguments for the appellant/ additional 2[nd] defendant and Adv. V. Suresh, for the R.F.A. No. 678 of 2007 -:13:- 1[st] respondent/plaintiff in R.F.A No.678/2007. 15. The main grounds of challenge of the additional 1[st] defendant in R.F.A No.269/2007 were that the trial court is highly unjustified in granting the decree for specific performance in favour of the plaintiff by relying on the oral evidence of PWs 1 and 2. According to him, PW2, had only stated to have witnessed signing by him of a single paper and the version lost credibility for the reason that in several pages of Ext.A1, signatures were there, allegedly put by him. According to the appellant, the above aspect was not noticed by the trial court while appreciating the evidence and therefore interference is called for. 16. On the strength of Ext.C2(a) it was contended that a building having more than 20 rooms is situated in the plaint schedule property with four door numbers capable of accommodating four families. The building itself was evaluated at `1,50,000/- by CW2, an expert engineer. The above evidence was also not appreciated properly. Otherwise the trial court could have found that the consideration for the alleged sale proposed by Ext.A1 is too meager. R.F.A. No. 678 of 2007 -:14:- 17. Additional 2[nd] defendant as appellant in RFA No.678/07 has raised contentions that the evidence adduced by him was misread by the trial court to arrive at a finding that he is not a bona fide purchaser of plaint schedule property for true value. According to him, without any basis the trial court found knowledge for appellant about Ext.A1 agreement for sale and that the prior deed in respect of plaint schedule property was not in the possession of the 1[st] defendant at the time of execution of the sale deed in favour of the additional 2[nd] defendant. According to him, the finding of the trial court that the alleged sale of property in favour of additional 2[nd] defendant is not a sale but only as a security for a loan is also unsupported by evidence. According to him, the factum that the additional 2[nd] defendant was impleaded later after 10 years from the alleged date of execution of the sale deed is also crucial in the case and that was also overlooked by the trial court. 18. It is contended further that the trial court failed to settle an issue, whether the Additional 2[nd] defendant is a bonafide purchaser of the plaint schedule property for consideration and thereby declined sufficient opportunity for him to substantiate his case. R.F.A. No. 678 of 2007 -:15:- 19. Sri.R.T. Pradeep the learned counsel, has also relied on ## **Sadashiv Prasad Singh v. Narendra Singh and others** [(2015) 5 SCC] to rest his contention that the 2[nd] defendant in the suit was a bonafide purchaser for consideration without knowledge of Ext.A1 and his right cannot be extinguished except in cases when the purchase of the property is assailed on grounds of fraud or collusion. 20. In the backdrop, it is crucial to see whether the grant of a decree for specific performance in favour of the plaintiff suffers for any of the vitiating reasons projected by the respective appellants. 21. The personal bars in the matter of enforcement of a specific performance of a contract is incorporated in Section 16 of the Specific Relief Act, 1963, Clause (c) of which being relevant in the context is extracted hereunder: ## “ 16. **Personal bars to relief** Specific performance of a contract cannot be enforced in favour of a person- ## (a)xxx ## (b)xxx (c) Who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the R.F.A. No. 678 of 2007 -:16:- defendant. ## Explanation to Clause (c) reads : ## Explanation : For the purposes of clause (c),- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court and money except when so directed by the court; (ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.” Originally Clause (c) incorporates the words “who fails to aver and prove” but the Specific Relief (Amendment) Act, 2018 (18 of 2018) substituted the above with the words “who fails to prove”, with effect from 01.08.2018. 22. The Original Suit seeking the decree being preferred in the year 2007, the decree would be declined to a party who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which he is bound to perform, other than terms, the performance of which has been prevented or waived by the defendant. 23. In the case on hand, Annexure A1 depicts an agreement for sale allegedly executed among the plaintiff and the 1[st] defendant. As provided in Clause (c) the plaintiff who R.F.A. No. 678 of 2007 -:17:- sought for enforcement of Ext.A1 has to plead and prove either that he had already performed his part or that he is ready and willing to do so. 24. Therefore, the prime requirement is to see whether in the plaint, the plaintiff has raised averments of either nature or not. Paragraph 6 of the plaint starts with the sentence, "The plaintiff has been and is still ready and willing to perform his part as per the agreement and to purchase the plaint schedule properties by paying the balance amount of `1,00,000/-, as agreed upon. The plaintiff has applied to the defendant specifically to perform the terms of agreement to be performed by him and has also tendered `1,00,000/- to the defendant and demanded conveyance of the plaint schedule property by a sufficient instrument. 25. The extract from the plaint made above indicates that pleadings relevant as contemplated under Clause-(c) of Section 16 are incorporated there by the plaintiff. The plaintiff has no claim that he had performed his part of the contract. As stated, he is ready and willing to perform the part agreed to be performed in accordance with the terms agreed. The plaint specifically incorporates a pleading that the plaintiff has been R.F.A. No. 678 of 2007 -:18:- and is ready and willing to perform his part of the contract i.e. to deposit `1,00,000/- being the balance sale consideration. 26. The further requirement that entitles a party seeking relief of specific performance is to prove his readiness and willingness to deposit `1,00,000/-. A scrutiny of the oral and documentary evidence tendered by plaintiff is apposited in the context. A proof affidavit has been filed by the plaintiff in lieu of examination in chief where in paragraphs 5 it has been sworn : "ശേ ഷം വിലയാര്ത്ഥമായ10,000/രൂപ നൽകി വിലയാധാരം വാങ്ങാൻ ഞാൻ അപ്പോഴും ഇപ്പോഴും എല്ലായ്പോഴും തയ്യാറും സന്നദ്ധനും ആയിരുന്നതും ഇപ്പോഴും തയ്യാറും സന്നദ്ധനും ആകുന്നു ". 27. PW1 was cross examined by the 1[st] defendant as well as the Additional 2[nd] defendant and it is worthy to notice that either of them did not even attempt to controvert him on the above aspect. Ext.A3 is the copy of the notice sent to the 1[st] defendant prior to the filing of the Suit. In that also the plaintiff had categorically exposed to the 1[st] defendant, his readiness and willingness to pay `1,00,000/- in due performance of his part. Notice was admitted by the 1[st] defendant as received and responded to. Copy of notice when put to PW1 while marking was also not opposed. R.F.A. No. 678 of 2007 -:19:- 28. When PW1 was precise in his pleading about readiness and willingness to pay the balance sale consideration both in the notice as well as in the plaint and establishing that aspect by adducing evidence which was not even attempted to be controverted in any manner, no space is left for the 1[st] defendant to raise a contention at the appellate stage that the plaintiff was not having sufficient funds to pay `1,00,000/- and therefore, there is total lack of basis in his claim of readiness and willingness to perform his part of the contract. As explanation to Clause (c) of Section 16 it is further provided that, where the contract involves payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when directed by the court. 29. Therefore, the plaintiff need not tender the money to the defendant or to deposit the same in court unless specifically directed to do so by the court. Therefore, the burden of the party seeking the relief is unambiguously clear that he shall only plead and prove that he is ready and willing to deposit the amount due towards payment of balance sale consideration as per the agreement for sale, executed among himself and the R.F.A. No. 678 of 2007 -:20:- party proposed to sell the property to him. 30. Readiness and willingness presupposes possession of money with the party seeking the relief in his account or that he has source of money wherefrom it could easily be drawn and paid, for the purpose. Therefore, only on confrontation by the opposite party in the agreement, he must show the source of his money to pay it to him. 31. In the case on hand the precise pleas and the oral evidence let in by PW1 on his readiness and willingness being uncontroverted, there is every basis for him to obtain a decree for specific performance. 32. The plea raised by additional 2[nd] defendant that he is a _bonafide_ purchaser unknowingly of the agreement for sale (Ext.A1) undoubtedly assumes relevance in the context. It is the specific plea of the plaintiff that Ext.A1 was executed among himself and the 1[st] defendant on 03.06.1993 agreeing to sell an extent of 12 cents of immovable property with a building situated therein for a total sale consideration of `1,50,000/-. According to him, `50,000/- was paid on the date of execution of Ext.A1 itself and the balance of `1,00,000/- was agreed to be paid on or before 10.01.1994, to get the sale deed executed. R.F.A. No. 678 of 2007 -:21:- According to PW1 as part of his performance as per Ext.A1 the 1[st] defendant has to measure out the property and convince the plaintiff about the documents with reference to the property that his title to the property agreed to be sold is perfect, valid and totally free from liabilities. According to PW1, the defendant failed to do so and on his frequent demands to the defendant to abide by the performance of his part as agreed in Ext.A1, he was constrained to sent a legal notice and consequently to prefer the Suit on hand seeking for a decree directing enforcement of Ext.A1 and execution of a sale deed by court intervention. 33. Execution of Ext.A1 itself was denied by the 1[st] defendant. According to him, he has not put signature in Ext.A1. He also took measures to forward the disputed signature and those admitted by him to the Forensic Scientific Laboratory and to get an expert opinion on authorship of those. Unfortunately, opinion came to his disfavour that the signature in Ext.A1 and those admitted by the 1[st] defendant were authored by one and the same person i.e himself. Thereupon, the 1[st] defendant took steps to amend the written statement by incorporating a plea that Ext.A1 is a false document fabricated R.F.A. No. 678 of 2007 -:22:- by the 1[st] defendant's son, a practising lawyer from the office of his counsel in a signed paper, obtained fraudulently therefrom. It is learnt that, an attempt was also not made to establish the fraudulent obtaining of the signed paper from the office of his lawyer and fabrication of the document falsely. It is pertinent to note on a perusal of Ext.A1 that the 1[st] page of it is a stamp paper purchased by the 1[st] defendant on 02/06/1993; Therefore, there is no reason to take a view that Ext.A1 is a fabricated document. The contention taken by the 1[st] defendant in that regard is repelled for the reasons. 34. The Original Suit seeking for a decree of specific performance of Ext.A1 was filed in the year 1994. Ext.A1 stipulates that the sale deed was to be executed in respect of the property agreed to be sold, on or before 10.01.1994 after receiving the balance sale consideration from the purchaser. The plaintiff who is bound to pay the sale consideration has established by oral evidence that `50,000/- was paid and the balance amount of `1,00,000/- was tendered but not accepted by the 1[st] defendant. He had also established his financial capacity to pay the balance sale consideration and thereby his readiness and willingness to perform his part of the agreement R.F.A. No. 678 of 2007 -:23:- for sale all through out the period. The 1[st] defendant had taken a specific contention that B Schedule property included in Ext.A1 was sold to additional defendant No.2. Additional defendant No.2 was brought on record vide order passed on 19.03.2000 in I.A.No.4385/1997. He was examined as DW3. The sale deed executed in his favour and the encumbrance certificate in respect of ‘B’ Schedule were marked respectively as Exts.B4 and B5. The tax receipts in the name of the additional 2[nd] defendant were marked in evidence as Exts.B10 to B12. The possession certificate issued in favour of the Additional 2[nd] defendant on 18.01.2000 was marked in evidence as B14. 35. DW3 has taken a stand that since ‘B’ schedule was purchased by him when the Family Court lifted the attachment on that and granted permission to the 1[st] defendant to sell that to clear off his dues of maintenance allowance payable to his wife as directed by the decree passed in her favour. It was thus contended that he was a bonafide purchaser for valuable consideration. He has also stated that mutation was also effected by him in his favour in respect of ‘B’ schedule. According to him he was not aware of Ext.A1 at the relevant R.F.A. No. 678 of 2007 -:24:- time when ‘B’ Schedule was purchased and Ext.B4 was executed. 36. When readiness and willingness of the plaintiff was established, the 1[st] defendant is legally bound to execute the sale deed in respect of the properties agreed to be sold as per Ext.A1 in favour of the plaintiff. The 1[st] defendant violated the terms of Ext.A1, when ‘B’ Schedule was sold to additional 2[nd] defendant. The entitlement of the plaintiff for getting a decree for specific performance will not lost for the reason that the 1[st] defendant has sold the property in favour of the additional 2[nd] defendant. But the 1[st] defendant died during the pendency of the appeal and his legal heirs were brought on record as additional respondents 3 to 8. When readiness and willingness to pay the balance sale consideration is established by the plaintiff, the 1[st] defendant is bound to execute the sale deed in respect of the plaint schedule property in his favour. Undoubtedly the plaintiff is entitled to get a decree for specific performance and the trial court has rightly granted it in his favour. ‘B’ schedule was found sold by the 1[st] defendant in favour of additional 2[nd] defendant during pendency of the Original Suit seeking specific performance. It appears that with R.F.A. No. 678 of 2007 -:25:- a view to defeat the entitlement of the plaintiff to get the sale deed in respect of the plaint schedule property executed in his favour that the 1[st] defendant has sold the plaint schedule property and executed Ext.B4 sale deed in favour of additional 2[nd] defendant. Therefore, additional 2[nd] defendant is not entitled to get any relief in the proceedings on hand. Appeal fails for the reasons and is dismissed. 37. The 1[st] defendant was reported dead during the pendency of the appeal. The additional 3[rd] defendant was his wife though was there in the array of defendants in the Original Suit, she was not shown as a respondent in the appeal on hand. Vide order dated 04.07.2013 in I.A. No.1405 of 2012, the legal heirs of the deceased 1[st] defendant were brought on record in the appeal as additional respondents 3 to 8. In the above scenario, direction is issued to additional respondents 3 to 8 herein and the additional 2[nd] defendant in the Original Suit who is the appellant herein to execute the sale deed in respect of the plaint schedule properties in favour of the plainiff (1[st] respondent in the appeal) after receiving the balance sale consideration of `1,00,000/-, within four months from the date of receipt of a certified copy of this judgment, failing which the R.F.A. No. 678 of 2007 ## -:26:- sale deed can be sought to be executed by the plaintiff/1[st] respondent in the appeal through the process of court, after depositing `1,00,000/- before the Court. The plaintiff is also entitled to realise costs from the defendants. Sd/- **MARY JOSEPH, JUDGE** ttb