Omana Menon and others v. V.R. Chithra Devi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN** **SATURDAY, THE 16TH DAY OF SEPTEMBER 2017/25TH BHADRA, 1939** **SA.No.706 of 1996 ( )** **----------------------(AGAINST THE JUDGMENT& DECREE DATED 31-03-1995 IN AS 103/1992 OF ADDL.SUB COURT, NORTH PARAVUR.) & (AGAINST THE JUDGMENT & DECREE DATED 31-07-1990 IN OS 282/1980 OF MUNSIFF COURT, PERUMBAVOOR)** ## **DEFENDANTS 3, 4 & 5/7TH RESPONDENT/APPELLANTS:** **---------------------------------------------** **1. V.R.CHITHRA DEVI, C/O.P.VASUDEVAN, GENERAL MERCHANT, KATTALLI-DICKKANSON ROAD, BANGALORE-42.** **2. V.R. RAGINI K. NAIR, THAIPARAMBIL VEEDU, AMBATTU KARA, CHOORNIKARA, ALUVA.** **3. V.R.CHAMUNDESWARI, THAIPARAMBIL VEEDU, AMBATTU KARA, CHOORNIKARA, ALUVA.** **BY ADVS.SRI.V.V.ASOKAN** **SRI.K.I.MAYANKUTTY MATHER** **PLAINTIFFS & DEFENDANTS 1,6 & 7/RESPONDENTS 1 TO 6, 8 AND 9: ------------------------------------------------------------** **1. OMANA MENON, W/O.DAMODARA MENON, VELLAYAKODATH HOUSE, THEKKUMBHAGOM KARA, THEKKUMBHAGOM VILLAGE, ALUVA TALUK.** **2. AMBIKA, D/O.OMANA MENON, VELLAYAKODATH HOUSE, THEKKUMBHAGOM KARA, THEKKUMBHAGOM VILLAGE, ALUVA TALUK.** **3. ANILKUMAR, S/O.OMANA MENON, VELLAYAKODATH HOUSE, THEKKUMBHAGOM KARA, THEKKUMBHAGOM VILLAGE, ALUVA TALUK.** **4. ASOK KUMAR, S/O.OMANA MENON (MINOR), VELLAYAKODATH HOUSE, THEKKUMBHAGOM KARA, THEKKUMBHAGOM VILLAGE, ALUVA TALUK.** **:2:** _**SA.No.706 of 1996**_ **5. AJITH KUMAR, S/O.OMANA MENON (MINOR), VELLAYAKODATH HOUSE, THEKKUMBHAGOM KARA, THEKKUMBHAGOM VILLAGE, ALUVA TALUK. (RESPONDENTS 4 & 5 ARE MINORS REPRESENTED BY THEIR GUARDIAN 1ST RESPONDENT OMANA MENON)** - **#6. K.V. GOURI AMMA, VELLAYAKODATH VEETTIL, (DELETED) VELLARAPPILLY SOUTH KARA, ALUVA, THEKKUMBHAGOM VILLAGE, (LRs IMPLEADED AS ADDL. R8).** **7. MAYA DEVI, C/O.HARIDAS, TELEPHONE EXCHANGE IN LAW, YELLAMANKOVIL STREET, ULOSORE, BANGALORE-8.** - ***i8. K.M.RADHAKRISHNA KURUP, THALAPARAMBIL VEEDU, AMBATTUKAVU KARA, ALUVA.** **(*i AS PER THE ORDER DATED 05.08.2009 VIDE MEMO C.F.4527/2009 RESPONDENT NO.8 IS NO MORE AND IT IS RECORDED THAT APPELLANTS AND RESPONDENT NO.7 ALREADY IN THE PARTY ARRAY ARE HIS LRs AND NO FURTHER STEPS ARE REQUIRED.)** - **(*ii RESPONDENT NO.6 IS DELETED FROM THE PARTY ARRAY BY ADDING HER LR:** **V.UNNIKRISHNAN, PADHUMANA HOUSE, MANJUMMEL SOUTH, UDYOGAMANDAL, ERNAKULAM.** **AS ADDL. R8 AFTER APPROPRIATLY RANKING MAYADEVI AND** **K.R.RAMAKRISHNA KURUP AS R6 AND R7 AS PER THE ORDER DATED 22.08.2014 IN I.A.1643/1996.)** ## _**ADDL.APPELLANTS**_ **10. SATHIDEVI, W/O.UNNIKRISHNAN, PUTHUMANA HOUSE, MANJUMMAL, ALUVA-683 501.** **11. REKHA, W/O.AJAYAN, MALIAKKAL HOUSE, PALLIKKARA, VIA AMBALAMUGHAL-683 562.** **12. RAKHI, W/O.PRASAD, NEDUMPILLY HOUSE, MANJUMMAL, ALUVA-683 501.** **R7 BY ADV. SRI.P.P.RAMACHANDRAN R3-5 BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM R10, R12 BY ADV. SRI.JOSE JOSEPH (CHEMPLAYIL)** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-09-2017, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **K.RAMAKRISHNAN, J.** ------------------------------------- S.A. No.706 of 1996 ------------------------------------------Dated this the 16[th] day of September, 2017 ## **JUDGMENT** Defendants 3 to 5 in O.S.282/1980 on the file of the Munsiff Court, Perumbavoor are the appellants herein. The suit was filed by respondents 1 to 5 for specific performance of the agreement to sale dated 25.02.1978 entered into between Damodaramenon, the husband of the first plaintiff and father of plaintiffs 2 to 5 with defendants 1, 2, 4 to 6 agreeing to purchase 38 cents of land with a house therein for a total consideration of Rs.5,000/. Out of which Rs.3,000/- was paid as advance and the balance amount has to be paid within six months and it has to be intimated to the vendor, thereby they will make arrangements to get Chithra, who is the 3[rd] defendant who is not a party to the agreement and execute the document in favour of Damodaramenon. According to the plaintiffs, even during the life time of Damodaramenon and during the subsistence of the period mentioned in the agreement itself, Damodaramenon was approaching the defendants with money and they were postponing the same on one ground or other. Even thereafter, he approached along with PWs 2 and 3. Thereafter he died on 14.12.1979 and even after his death, first plaintiff approached the defendants to get the document executed, after receiving the amount, _**S.A. No.706 of 1996**_ 2 they did not agree for the same. So she sent Ext.A2 notice to the defendants, asking them to receive the amount and execute the document fixing the date for execution, but they did not come to the registrar's office as requested for, but they sent a reply with false allegations, that prompted the plaintiffs to file the suit for specific performance. In the plaint, it was mentioned that Damodaramenon was having financial capacity to pay the amount and he was ready and willing to perform the contract and it was due to the fault of the defendants that the same could not be materialised. 2. The first defendant remained ex-parte. 3. Defendants 2 to 6 filed joint written statement admitting the execution of Ext.A1 agreement. It was mentioned in the written statement that 3[rd] defendant was not a party to the agreement and she was not aware of the execution of the document. They also contended that, during the life time of Damodaramenon, he never approached the defendants to get the document executed by tendering the amount. The allegations contra in the plaint that, he was ready and willing to perform his part of the contract and even he approached the defendants along with PWs 2 and 3 and after the death of Damodaramenon, plaintiffs also requested through PWs 2 and 3 for that purpose and only then she realised that they will not execute the _**S.A. No.706 of 1996**_ 3 document etc., is not correct and denied. They have also stated that they have sent proper reply to the notice. Further the price of the land has been escalated and the property will fetch more than Rs.4,000/per cent and if specific performance is ordered after the lapse of two years of the agreement, they will be put to irreparable hardship. They also contended that, since Damodaramenon did not comply with the terms, they will have to sell another property and thereby they sustained loss of Rs.3,000/- and as such, they are not return the advance amount paid and so they prayed for dismissal of the suit. 4. On the basis of the pleadings, following issues were framed by the trial court: _i. Whether there was a concluded contract between Damodaramenon and dependents? ii. Whether the plaintiffs are competent to file a suit? iii. Whether the plaintiff was prepared and ready to perform her part of the contract? iv. Who was committed the breach of contract? v. Whether the plaintiffs relief prayer for specific performance of the contract is allowable?_ 5. Plaintiff was examined as PW1 and three witnesses were examined as PWs 2 to 4 and Exts.A1 to A9 were marked on the side of the plaintiffs. The second defendant was earlier examined as DW1. After considering the evidence on record, as per judgment dated _**S.A. No.706 of 1996**_ 4 30.03.1984, the trial court earlier decreed the suit granting a decree for specific performance in favour of the plaintiffs directing the plaintiffs to deposit the amount within two months and apply for execution of the document and if it is not done by the defendants permitting her to approach court for that purpose. 6. Dissatisfied with the same, defendants 1 to 6 filed A.S.113/84 before the Additional District Court, Paravoor. During the pendency of the appeal, the plaintiffs filed I.A.No.1841/86 for amendment of the plaint incorporating the allegation that plaintiffs were ready and willing to perform their part of the contract and also amended the earlier part of the plaint instead of Specific Performance Act as Specific Relief Act. The amendment was allowed on terms and the defendants filed additional written statement denying the allegations of the plaintiffs that they were ready and willing to perform their part of the contract. In view of allowing the amendment, the first appellate court earlier by judgment dated 7.3.87 allowed the appeal and set aside the decree and judgment passed and remanded the case for allowing the plaintiff to adduce evidence on the question of readiness and willingness on the performance of the contract alone. Thereafter, after remand PW1 was recalled and examined and the 6[th] defendant was also examined as DW2. After considering the evidence _**S.A. No.706 of 1996**_ 5 on record, the trial court found that the plaintiff has established that they were ready and willing to perform their part of contract and there was no latches on the part of the plaintiffs or their predecessor and defendants have committed default and decreed the suit as prayed for. During the pendency of the suit after remand, the second defendant died and defendants 2 to 6 were recorded as her legal representatives and additional 7[th] defendant was also impleaded as her legal heir. Dissatisfied with the same, the defendants 4 and 5 filed appeal as A.S.103/92 and showing other defendants as respondents 6 to 9. The appellate court dismissed the appeal. Dissatisfied with the same, the appellants who are defendants 3 to 5 in the court below filed this second appeal. 7. While admitting the second appeal, this court has accepted the substantial questions of law raised in the appeal memorandum as substantial question of law arise for consideration which reads as follows: _a. Is not the time fixed in Ext.A1, the essence of contract between the parties are not the promisors liable to convey the property only on payment of the promise of the amount within the time stipulated in Ext.A1._ _b. Where the courts below justified in passing a decree for specific performance against the third defendant who evidently is not a party to Ext.A1_ _**S.A. No.706 of 1996**_ 6 _c. Are the plaintiff entitled as of right to claim for specific performance._ _d. Whether not the court below in error and exercising their discretion to decree specific performance in view of the plaintiff._ 8. During the course of argument, this court also felt that additional question of law also arises for consideration. So the following additional question of law also formulated. “From the facts and circumstances of the case, whether the courts below were justified in holding that the plaintiff and their predecessors were ready and willing to perform their part of the contract as contemplated under Section 16C (1) (c) of the Specific Relief Act” and this aspect also heard along with the other substantial questions of law raised. 9. Heard Sri.P.Rahul, counsel representing Sri.V.V.Asokan, senior counsel for the appellant and Sri.V.Rajendran, counsel appearing for respondents 1 to 5. 10. During the pendency of the appeal, 6[th] respondent died and one V.Unnikrishnan was impleaded as his legal heir. Thereafter the 8[th] respondent also died and appellants and 7[th] respondent were recorded as his legal heirs. When Unnikrishnan also died, his legal heris were impleaded as respondents 9 to 11 as per order in I.A.2302/2014 dated 7.8.2017. It is seen from the appeal memorandum that the ranking of Mayavathi and Ramakrishnakurup were re-arranged as respondents 6 _**S.A. No.706 of 1996**_ 7 and 7 and Unnikrishnan was impleaded as additional 8[th] respondent as per order in I.A.No.1643/96. If that be the case, the rank of legal representatives of Unnikrishnan will be additional respondents 9 to 11 instead of 10 to 12 as carried out in the appeal memorandum, which has to be corrected by the office considering the observation made by this court to avoid complications later. 11. The counsel for the appellants argued that third defendant was not a party to Ext.A1 agreement and there was no evidence to show that she had ever consented for the execution of the document and under such circumstances the courts below were not justified in directing execution of the sale deed by third defendant. He had also argued that the evidence on record will go to show that during the life time of Damodaramenon, he never made any attempt to get the document executed and only after his death, notice was issued by his legal heirs, that shows that, he was not willing to perform his part of the contract and as such they are not entitled to get specific performance, this aspect has not been properly considered by the court below. The evidence of PWs 2 and 3 is contrary to the evidence of PW1 on these aspects. Further the time was essence of the contract and the sale agreement was executed at the time when second defendant was in need of money for her daughters marriage namely _**S.A. No.706 of 1996**_ 8 D4 and D6 and she had to sell the property of 7[th] defendant for that purpose evidenced by Ext.B5. So the courts below have not properly appreciated this aspect. So according to the learned counsel, time was essence of the contract and as such, the courts below were not justified in exercising the discretion under Section 20 of the Specific Relief Act in favour of the plaintiffs. 12. On the other hand, the counsel for the respondents argued that, under Section 55 of the Contract Act and also the decisions of the Apex Court, it will be seen that, in the case of agreement to sell in respect of immovable property, time cannot be treated as essence of contract, unless it was intended by the parties and in such cases, the burden is on the defendant to prove that the time was essence of contract. There was no such case made out in the written statement. Further even in the reply notice also, they have no case that the document was executed for meeting the marriage expenses of the daughters and as such time was the essence of the contract. Further the third defendant cannot now say that she is not bound by Ext.A1 agreement as by her conduct she had accepted the document and the notice was issued for all the defendants jointly in which the execution of the document was accepted. Further even in the written statement also they have admitted the execution of Ext.A1 document and she did _**S.A. No.706 of 1996**_ 9 not go to the witness box to say that she was not bound by the agreement as well. So from her conduct, it can be presumed that she had acquiesced to Ext.A1 agreement and so the courts below were justified in holding that she is also liable as bound by the agreement. Further according to the learned counsel considering the relationship between the parties that deceased Damodaramenon is none other than the brother of first and second defendants and on account of the healthy relationship between them, he was residing in the tharavad house with the family and managing the property, he wanted to purchase the property and he was approaching the sisters for that purpose. But since third defendant was not available for executing the document and the same could not be performed during his life time and that is evident from the evidence of PWs 2 and 3 and this has been made mention in the plaint itself. So under such circumstances, courts below were perfectly justified in decreeing the suit and there is no necessity to interfere with the concurrent finding of the courts below. 13. It is an admitted fact that the plaint schedule property belong to defendants 2 to 6 and first defendant was having jenm right over the same, that was the reason how she happened to join as a party in Ext.A1 agreement. It is also an admitted fact that the third _**S.A. No.706 of 1996**_ 10 defendant was not a signatory to Ext.A1 document. But it will be seen from Ext.B3 reply notice that the instruction for sending notice was given by all the defendants where they have admitted the execution of Ext.A1 agreement, but they have contended that it was due to the fault on the part of the deceased Damodaramenon that the same could not be materialised and so after his death the plaintiffs have not entitled to ask for specific performance of the contract. Further when second defendant was examined as DW1, she had also admitted that what ever stated in Ext.A1 agreement and Ext.B3 notice are true and correct. Further the third defendant did not go to the witness box to say that she was not consulted before the agreement and she is not bound by the agreement as well as she is not a signatory to the document. 14. It is true that, normally, if one of the defendant is not a party to the document, then she is not normally bound to execute the document as contemplated in Ext.A1 document, but if the circumstances of his/her conduct, if it is seen that she had acquiesced to the conduct of other defendants regarding the execution of the document for and on her behalf and she did not object the same at the first point of time, then it can be presumed that she had acquiesced to the execution of the document and she was ready and willing to _**S.A. No.706 of 1996**_ 11 perform the undertaking given by other defendants to execute the document along with them after receiving consideration. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that by conduct she had acquiesced to the execution of the document and she was bound by the undertaking given by other defendants who are the other co-owners and as such she is also liable to execute the document and that concurrent findings of the courts below on this aspect do not call for any interference. 15. There is no dispute regarding the proposition of law laid down in the decisions report in _**Gomathinayagam Pillai and Others v. Palaniswami Nadar** (1967 KHC 590)_ , _**Babulal Harchand Beldar v. Sitaram Kathu Borse (Dhobi)** (2017 KHC 2126)_ , _**Indira Kaur v. Sheo Lal** (1988 KHC 670)_ , _**Lakshmi Amma v. Rajan** (2014 KHC 3690),_ for the proposition that, normally in the case of sale agreement in respect of immovable property, time is not an essence of the contract and if one of the party says that it is the essence of contract, it is for that party to plead and prove that aspect. It must be specifically mentioned in the document or it must be proved that such a thing was in existence even at the time of executing the document and that prompted them to enter into such a contract. In this case, it will be seen from Ext.B3 reply notice that there was no case for the _**S.A. No.706 of 1996**_ 12 defendants that time was essence of contract and the contract was entered into for the purpose of raising money for the marriage of the daughters of the second defendant namely defendants 4 and 6. Further even in the written statement also they have no such case. But they have stated in the written statement that they had to sell another property for the same price and thereby they sustained a loss of Rs.3,000/- and as such they are not liable to return the advance amount. So only at the time of evidence, DW1 had put up a case that the agreement was entered into between the parties in contemplation of the marriage expenses of her daughters. So any amount of evidence adduced without pleading is of no consequence, it need not be looked into for that purpose. So under such circumstances, the courts below were perfectly justified in coming to the conclusion that time is not the essence of the contract as contended by the counsel for the appellant. 16. The question is whether the courts below were justified in coming to the conclusion that deceased Damodaramenon and their successors namely plaintiffs were ready and willing to perform their party of the contract as contemplated under Section 16(c) of Specific Relief Act. As per Section 16(c) of the Specific Relief Act, if the plaintiff is not alleged and proved that he was ready and willing to perform his _**S.A. No.706 of 1996**_ 13 part of the contract, then the court can deny specific relief. It is an admitted fact that Ext.A1 agreement was dated 25.02.1975, the period mentioned in the document was six months, which expired on 25.08.78. There is no dispute that deceased Damodaramenon died on 14.12.1979 and Ext.A2 notice was issued only on 6.2.1980. There is no documentary evidence produced to prove that any steps were taken by deceased Damodaramenon to get the document executed within the period of six months provided in Ext.A1 document. 17. Ext.A1 document regarding that aspect reads as follows: “ക�പ�� അവധ�ക�ള�ൽ ബ�ക� ഞങൾക�വര�ണ ��പ �ണ�യ��� ന�ങൾ �യ�റ�ക� വ�വ�� ഞങള� അറ�യ�ക�കയ�� ന�ങ��ള� ച�ലവ�ൽ �"റ�ധ��� എഴ��� ���കയ�� ളചയ��ൽ ഞങൾ സ�ഖ( പറ�യ��ന� ര*ഷ� �"റ�ൽ ഒപ�ട�� വസ��വകകൾ ന�ങൾക0 കകവ*� �ന�� �ജ�സ4�ർ കര6��യ�ൽ ഹ�ജ��യ� ആധ��ത�നളറ �ജ�സര4�ഷൻ ന�പ��കൾ പ�ർത�യ�ക�ളക�ള�വ�ന��ണ. “ 18. He had also stated that they will get the third defendant who is not a party to the document also joined the document. But it was not mentioned in the document that it is a condition precedent for getting the balance amount of Rs.2,000/-. The plaintiffs have no case that during the period mentioned in the document namely six months, deceased Damodaramenon had sent any notice asking the defendants to receive the amount and get the document executed. _**S.A. No.706 of 1996**_ 14 19. The case of the plaintiffs in the plaint was that even during the life time of Damodaramenon within the period mentioned in the document, Damodaramenon himself had personally contacted the defendants and they were telling that they would bring the third defendant and when she came the document could be executed. Even according to the plaintiffs, during the marriage of Ragini, 4[th] defendant at Chottanikkara, they happened to meet Chithra, namely the third defendant and at that time when they demanded for the execution of the document, she said that she was not having time and she would come on another occasion, at that time it can be executed. These aspects were denied by the defendants. When PW1 was examined, she had stated that even during the period of agreement, her husband had went to the defendants and asked for execution of the document, but the specific day on which he went has not been mentioned. Thereafter it was mentioned that during 1979, when third defendant came to attend the marriage of her sister at Chottanikkara, she along with her husband and one brother wanted to execute the document, but she said that she had no time, even at that time, the date on which it was done has not been mentioned and this fact was denied as well. She had admitted that even during the life time of Damodaramenon he did not make any demand in writing to the defendants to execute the 15 ## _**S.A. No.706 of 1996**_ document. She had also admitted that at the time when her husband died, the period mentioned in the agreement for executing the document had expired. 20. According to her, the marriage of 6[th] defendant was conducted on 11.04.1979 at Guruvayoor, but the third defendant did not come for the marriage. The date of marriage of Ragini was not mentioned in the evidence as well. But later part of the evidence, in the cross examination she had stated that the marriage of Ragini was on 26.08.79. So it was more than one year of execution of Ext.A1 agreement even according to the plaintiff that the first demand was made to the third defendant. At that time also along with her husband one brother was also there and the first defendant was also present. She had admitted in the cross examination that the deceased had taken loan of Rs.5,000/- for the purpose of even paying the advance. If really he had raised the amount of Rs.5,000/- even at that time, there was nothing prevented him to pay the entire amount and get the document executed without fixing a time after getting the presence of third defendant. She was not aware of the financial position of her husband/deceased Damodaramenon. She had also admitted that her husband was treated for two months in the hospital before his death. She had further stated that she had no personal knowledge about _**S.A. No.706 of 1996**_ 16 things transpired during the life time of her husband and what ever transpired regarding the discussion between her husband and defendants was only on the basis of hearsay knowledge stated by PW2 Gangadharan. Even after remand she had only stated that her husband and herself were ready and willing to perform the contract. In the plaint, though it was mentioned that her husband was having financial capacity and he was ready to execute the document, there was no specific averment in the plaint that from the date of agreement till his death, he was ready and willing to perform his part of the contract and it was due to the default on the part of the defendants that could not be executed. Further even after the amendment what is stated is only that, “പട�ക വസ��കൾ �"റ�വ�ങ�ന��ന ക��റന�സ��60 വ�ദ�കൾ ളചരയണ എല>� 4പവ(ത�ക��� ളചയ�ന��ന�� വ�ദ�കൾ അരപ�ഴ��, ഇരപ�ഴ��, എരപ�ഴ�� �യ�റ�ണ “ 21. Even there is no averment that the deceased Damodaramenon was always ready and willing to perform his part of the contract till his death from the date of agreement. It is true that they are relatives. When it comes to the question of specific performance, the readiness and willingness to perform the part of the contract has to be established by the parties. The evidence of PWs 2 _**S.A. No.706 of 1996**_ 17 and 3 only says that they intervened in the matter. The specific dates on which they met the second defendant along with the deceased Damodaramenon was not mentioned by them. They have only vaguely stated that they have after the execution of Ext.A1 agreement and after the death of Damodaramenon approached the defendant for the purpose of getting the document executed, but they were postponing the same on one account or other. Only on the last occasion when they met they came to understand that they will not execute the document. This evidence is not sufficient to come to the conclusion that the readiness and willingness on the part of the deceased Damodaramenon was in existence from the date of execution of the document till his death and that continued even after death and that was pursued by the plaintiffs. If this aspect has not been proved by the plaintiffs as required under law, then they are not entitled to get specific performance of the contract as there is a specific bar under Section 16(c) of the Specific Relief Act for granting specific relief, if this aspect has not been proved. Courts below have casually taken the circumstances and came to the conclusion that the readiness and willingness to perform the contract can be inferred to the circumstances, but this court, in view of the discussions made above, came to the conclusion that such an inference cannot be possible and _**S.A. No.706 of 1996**_ 18 even going by the evidence there is no evidence to show that during the subsistence of the contract period namely within six months of the execution of their agreement to any attempt was made on the part of deceased Damodaramenon show his readiness and willingness to perform the contract on his part. 22. On the other hand, the evidence of PW1 will go to show that even during the life time of deceased Damodaramenon, second defendant was approaching him for demanding the amount and get the document executed, but he was not prepared to pay the amount, but insisted the presence of third defendant to pay the amount and get the document executed. So that shows that he was trying to postpone the the execution of the document on one pretext or other. But on the other hand, the defendants were ready and willing to perform their part of the contract. It is true, in view of the settled position of law, it is not necessary that the plaintiff has to prove that he was ready with the money, but he need only to prove that he can raise the money. Admittedly, Damodaramenon was working in Travancore Rayons as a helper and it was also brought out in evidence of PW1 that he had raised the loan for paying the advance and there is a possibility of raising further loan for paying the balance amount as well. But there is nothing on record to show that whether he had made any attempt to _**S.A. No.706 of 1996**_ 19 raise that amount during his life time. It is also brought out in evidence that he died when he was in employment and the money was ready after his retirement only. So that also shows that he was not having the money with him and the circumstance mentioned by PW1 that he was suffering from some illness, he underwent treatment for two months and thereafter he died also show that he was also in financial crises and that may be the reason why he had not made any attempt to send any notice during his life time to get the document executed through the defendants. 23. On the question of readiness and willingness, the dictum laid down in the decision reported in _**Kochappa v. Somasundaram Chettiyan** (1991 KHC 20)_ this court has held that the persons who claims relief must satisfy the court about the readiness and willingness right from the time of contract till the date of decree. Readiness and willingness are distinct and separate and they will have to coincide. Willingness could be ascert from conduct and attendant circumstances. Same view has been reiterated in the decision reported in _**PR. Deb and Associates v. Sunanda Roy** [(1996) 4 SCC 423]_ , _**His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar** [(1996) 4 SCC 526]_ , _**Vinodan v. Sunil Kumar and Others** [2015 (2) KHC 656)_ , _**Muhammed v. Chandrika and Another** (2010 (3) KHC 233)_ , _**S.A. No.706 of 1996**_ 20 _**Singaravelu Kounder v. Sulaiman and Others** (2007 (2) KHC 437)_ , _**Coromandel Indag Products (P) Ltd., v. Garuda Chit & Trading Co. P. Ltd. and Another** (2011 KHC 4705)_ , _**Prema Chandra M. V. and Another v. Sarojamma and Others** (2015 KHC 1035)_ , _**Nanjachary v. P. Chennaveerachari and Others** (2015 KHC 1906)_ , _**Malireddy Buthiramanna Dora and Another v. Dasari Veerabhadra Rao and Another** (2012 KHC 2243)_ , _**Sundari Devi v. Deo Narayan Prasad** (2011 KHC 2476)_ , _**Madhu Verma v. Urmila Devi and Another** (2011 KHC 2213)_ . 24. The counsel for the contesting respondents submitted that there is a reciprocal promise and unless the reciprocal promise is performed, there is no necessity for the promisee to pay the amount and perform the contract. The decisions relied on by the counsel for the appellant are not applicable to the facts of this case. So the same are not cited here. In all those cases, there were certain things to be performed by the vendor before the vendee paying the amount and performing his part of the contract as a condition precedent for performing the contract. So in those cases it was held that unless the vendor had performed his part of the contract as per the agreement, the vendee need not perform his part of the contract. So that cannot be treated as latches on the part of the vendee as there was default on _**S.A. No.706 of 1996**_ 21 the part of the vendor in performing his part of the contract which is a condition precedent for performing the contract by the vendee. In this case, it cannot be said that if there was a condition precedent for getting Chithra the third defendant to come and execute the document for payment of the balance amount. What is stated in the agreement was that when the balance amount was ready and that was informed to them, namely the executants mentioned in the document, they will take all steps to get the document executed including Chithra to join the execution of the document. So it cannot be said that it was a condition precedent for the vendee to pay the balance amount. The first condition is that the vendee has to inform the vendor about his readiness of with the money only when the corresponding responsibility on the vendor to get the document executed including by the party who was not a party to the agreement on whose behalf also they have undertaken. So under such circumstance, there is no merit in the submission made by the counsel for the respondents 1 to 5 that since it is a reciprocal promise and the executants have not performed their part of the contract, Damodaramenon need not pay the amount and insist for execution of the document from his side and it is without any merit. 25. This court is aware of the fact that the concurrent finding _**S.A. No.706 of 1996**_ 22 of the courts below cannot be normally set aside unless this court is able to give reasons for setting aside the same showing that it is perverse and against law. In this case the main ingredient for granting specific performance namely readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act has not been fulfilled by the plaintiffs and this aspect has been lightly taken by the courts below while granting relief of specific performance which is not contemplated. So under such circumstances, the courts below were not justified in granting a decree for specific performance and the same is liable to be set aside. 26. Then the question is whether the plaintiff is entitled to get refund of the amount without the prayer in the written statement. At the time when DW1 was examined, she had expressed her willingness to pay the amount. Further under Section 21 of the Specific Relief Act, read with Section 22 of the Specific Relief Act, court can at any time direct the party to ask for refund of the amount by amending the plaint. In this case, such a thing was not done at the stage of the appellate stage or the trial stage. Only this court on appreciation of evidence came to the conclusion that the plaintiffs have failed to prove the readiness and willingness on the part of the vendee and thereby they are not entitled to get specific performance and set aside the _**S.A. No.706 of 1996**_ 23 decree. So this court feels that it is necessary to meet the equity and interest of justice that direct the defendant to return not only the advance amount of Rs.3,000/- but they will have to pay more as the amount was received by them in 1978, considering the money value involved it will have more value now. So under such circumstances, this court feels that even though there is no prayer for return of advance amount, exercising the discretion vested in the court and also considering the circumstances, this court feels that as an equitable relief while denying the specific performance the court can direct the defendants 2 to 6 to pay the amount of Rs.3,000/- and also a compensation of Rs.20,000/- together with interest of 12% on Rs.3,000/- from the date of Ext.A1 agreement till payment that will meet the ends of justice in this case. So the second appeal is allowed and the decree and judgment passed by the court below granting a decree of specific performance of Ext.A1 sale agreement are set aside, but the appellants and other defendants namely Mayadevi, who was the 6[th] defendant in the court below are directed to pay the amount of Rs.3,000/- together with interest of 12% from the date of Ext.A1 agreement till payment and also pay additional compensation of Rs.20,000/- to the plaintiffs within a period of three months. If the amount is not paid, then the plaint schedule property will be made 24 ## _**S.A. No.706 of 1996**_ charge for the said amount and plaintiffs are at liberty to realise the amount through court. Considering the circumstances of the case, the parties are directed to bear the respective costs through out. Registry is directed to communicate the judgment to the court below and also send back the records to the court below. _Sd/-_ **K. RAMAKRISHNAN, JUDGE.** //True Copy// _P.A. to Judge_ ss