M K MARATTUKULAM Vs. HEMCHAND

JUDGEMENT

(1.) The 2nd defendant for self and as power-of-attorney-holder of defendants 2 to 5 entered into an agreement Ext. Al dated 23-5-1977 for sale of the suit property 1 acre 11 cents in extent to the plaintiff for a consideration of Rs. 60,000/-. The payment of advance Rs. 20,000/-is acknowledged in Ext. Al. As per the terms of the agreement the balance Rs. 40,000/- is to be paid and the sale transaction is to be completed within a period of two months. The property belonged to Kuncheria T. Marattukulam, father of defendants 1 to 4 and the husband of the 5th defendant. Ext. Al asserts that on the death of Kuncheria T. Marattukulam the property has devolved on defendants 1 to 5. The plaintiff issued notice Ext. A4 on 21-10-1977 demanding performance of the contract by the defendants. Exts. AS to A8 are subsequent notices for the same purpose. On failure of the defendants to execute the sale deed, the plaintiff filed the present suit for specific performance of the contract. The defendants raised various pleas in answer to the plaint. For the purpose of this appeal it is necessary to advert only to two of the contentions raised by the defendants

(2.) Counsel for the appellant submits that the defendants are not bound to execute the sale deed as the time fixed for completion of the transaction expired on 23-7-1977 and a demand for performance was made by Ext. A4 notice only on 21-10-1977. It is well settled that time is not the essence of a contract for sale of land and an agreement can be enforced even after the time stipulated between the parties (vide Govind Prasad Chaturvedi v. Hari Dutt Shastri and another, AIR 1977 SC 1005 , and Gomathinayagam Pillai v. Palanisami, AIR 1967 SC 868 ).

(3.) The more formidable contention raised by learned counsel for the appellant is on point No. 2 stated above. Kuncheria died in 1974 and his assets devolved on his wife and all his children. The Travancore Christian Succession Act, 1072 stood repealed on the coming into force of the Part B States (Law) Act, 1951 and intestate succession to the estate of a deceased Indian Christian is governed by Chapter II of Part V of the Indian Succession Act, 1925. The daughters are also legal heirs of the deceased and defendants 1 to 5 are not competent to convey full title to the property in terms of the agreement Ext. Al. It is also contended that the plaintiff had not pleaded his willingness to accept an assignment of the share due to defendants 1 to 5 in terms of S.12 of the Specific Relief Act and no such relief can also be granted in the present suit.