D. NARAYANA SURVE Vs. PAPPU AMMAL

JUDGEMENT

(1.) The 2nd defendant is the appellant. The suit is for specific performance of Ext. A-1 agreement, dated 29th September, 1963 between the plaintiff and the 1st defendant for sale of the suit property, a residential building and its site for a price fixed at Rs. 9,250. A sum of Rs. 1,000 was paid as advance on the date of the agreement. A further sum of Rs. 250 was paid subsequently and endorsed on Ext. A-1. As per the terms of the agreement the balance consideration is to be paid and the sale deed is to be executed on or before 31st March, 1964. Time for performance was later extended till 30th May, 1964. The suit is filed on 15th March, 1965 on the failure of the 1st defendant to perform his part of the contract. The 1st defendant contended that he was always ready and willing to receive the balance consideration and execute the sale deed, and it was for the failure of the plaintiff to pay the balance consideration that the document could not be executed. The suit happened to be dismissed for default of appearance of the plaintiff and he filed an application for restoration of the suit. Pending the application for restoration the 1st defendant sold the property to the 2nd defendant as per Ext. B-2, dated 11th February, 1970 for a sum of Rs. 13,000. The suit was restored and the 2nd defendant was impleaded on 7th August, 1980. He filed a written statement adopting the contentions of the 1st defendant. The Trial Court found that the 1st defendant was entitled only to half the right he had agreed to convey and decreed the suit directing the execution of a sale deed in favour of the plaintiffs, conveying the right, title and interest of the defendants in the suit property for half the price fixed in Ext. A-1, less the sum of Rs. 1,250 already paid in two instalments. Since the decree relates only to a fractional share the plaintiff was directed to file a separate suit for partition and recovery of possession of the share due to him as per the decree. The 2nd defendant was held entitled to value of improvements effected subsequent to Ext. B-2, but his rights in that behalf are directed to be worked out in the partition suit to be filed by the plaintiffs. In an appeal by the 2nd defendant and a memorandum of cross objection by the plaintiff, the lower appellate court has confirmed the decree for specific performance and has further directed the defendants to deliver possession of the property to the plaintiffs on execution of the sale deed in their favour. The 2nd defendant is held entitled to remove the improvements alleged to have been effected by him in case the plaintiffs do not want to pay for and retain the same in the property. It is against this decree of the lower appellate court that the 2nd defendant has come up in second appeal.

(2.) During the pendency of the second appeal the 1st defendant died, and the second defendant appellant has filed a memo stating that the 1st defendant has no legal representatives to be impleaded in the second appeal.

(3.) The second appeal is admitted on questions of law Nos. 1 and 2 formulated in the memorandum of second appeal extracted below: