Sadasivam, J.-Appellants are defendants 1 and 6 in O.S.No. 23 of 1963, on the file of the Subordinate Judge’s Court, Padmanabhapuram. The first respondent-plaintiff filed the suit for specific performance of the agreement of sale Exhibit A-4, dated 15th February, 1961, for Rs. 52,000 in respect of 126 acres 91 cents of land known as ‘Love Grow Providence Estate’ owned by defendants 1 and 2. The first defendant is the wife and the second defendant is the daughter of D.W. 4 Raman Pillai, who acted on their behalf in bringing about the agreement of sale. Defendants 1 and 2 had purchased the suit property from the third defendant on 20th June, 1956 for Rs. 20,000 under the original of Exhibit B-2, but paid only Rs. 1,500 at the time of sale and agreed to pay the balance of Rs. 18,500 in four instalments from August, 1958 to August, 1962. There is no dispute about the claim of the third defendant for the balance of sale consideration payable to him. Defendants 4 and 5 were cultivating the suit lands excluding the portions occupied by rubber plants and trees for raising tapioca under an unregistered lease deed dated 27th March, 1957, which has not however been produced in this case. According to the plaintiff, defendants 4 and 5 were in occupation of the suit lands as lessees of defendants 1 and 2 for the purpose of tapioca cultivation. But, according to defendants 1 and 2, defendants 4 and 5 were only licensees who were permitted to cultivate tapioca plants year after year. Defendants 4 and 5 claimed to be lessees in possession of the suit land and contended that they had spent Rs. 10,000 for improving the properties and claimed benefits of the Travancore-Cochin Act VIII of 1950. But they subsequently surrendered possession of the suit lands in pursuance of the compromise entered into by them with defendants 1 and 2. The sixth defendant purchased an extent of 67 acres 64 cents out of the suit properties from defendants 1 and 2 on 2nd December, 1963, that is after suit, for Rs. 60,000. 2. But they subsequently surrendered possession of the suit lands in pursuance of the compromise entered into by them with defendants 1 and 2. The sixth defendant purchased an extent of 67 acres 64 cents out of the suit properties from defendants 1 and 2 on 2nd December, 1963, that is after suit, for Rs. 60,000. 2. The learned Subordinate Judge accepted the plaintiff’s case that he was always ready and willing to perform his part of the agreement of sale and that the default was solely due to the inability of defendants 1 and 2 to give possession of the suit lands on account of the subsisting lease in favour of defendants 4 and 5. The learned Subordinate Judge, however, accepted the case of the contesting defendants 1 and 2 that the other conditions of sale as regards the obtaining of the encumbrance certificate and satisfying the plaintiff about the boundaries etc., of the suit properties were complied with. He did not agree that defendants 4 and 5 were merely licensees and that the possession of the suit properties remained with defendants 1 and 2, or that there was any abandonment of the suit claim by the plaintiff either on account of inordinate delay or other circumstances or that defendants 1 and 2 effected improvements at considerable cost and that specific performance should not therefore be granted. In the result, the learned Subordinate Judge decreed the suit as prayed for with costs against defendants 1 and 2 and allowed the third defendant to draw the amount due to him out of the amount to be deposited by the plaintiff within three months from the date of the judgment. 3. It is averred in paragraph 3 of the plaint that, as per the terms of the agreement, defendants 1 and 2 should have within three months of the date of the agreement of sale satisfied the plaintiff by getting encumbrance certificate regarding the plaint schedule property for the period from 8th June, 1956, and showing that to the plaintiff, that they should have satisfied the plaintiff regarding the boundaries and extent of the plaint schedule property and that they should also have delivered vacant possession of the plaint schedule property to the plaintiff. The first defendant has pleaded in her written statement that paragraph 3 of the plaint is not correct and that the relevant terms of the agreement have not been truly and correctly stated in the said paragraph. There is no doubt about the truth of the agreement of sale Exhibit A-4 and the terms of the agreement mentioned therein. According to the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate in respect of the suit properties from 8th June, 1956, and satisfy the plaintiff about the extent and boundaries of the schedule Properties and hand over the entire schedule properties to him within three months from the date of the agreement of sale. D.W. 4 Raman Pillai applied tor encumbrance certificate a few days prior to the expiry of the three months’ period and got the encumbrance certificate Exhibit B-1 on 20th May, 1961, that is five days after the expiry of the three months’ period. The learned Subordinate Judge has observed that the fact that Exhibit B-1 was not obtained before the expiry of the three month’s period, but only five days later, cannot at all be viewed with disfavour against defendants 1 and 2. D.W. 4 Raman Pillai claims to have shown Exhibit B-1 to the plaintiff on 26th May, 1961, but the plaintiff as P.W. 6 denies the same. D.W. 1 Purushothaman Nair corroborates the evidence of D.W.4 Raman Pillai that the latter showed the encumbrance certificate to the plaintiff. The learned Subordinate Judge has rightly observed that the probabilities are that D.W. 4 Raman Pillai who had obtained the encumbrance certificate would have shown it to the plaintiff when he came to his house on 26th May, 1961. Thus the fact that defendants 1 and 2 did not obtain an encumbrance certificate within the period of three months cannot be considered to be a default on the part of defendants 1 and 2 which can lead to any inference they were not willing to perform the agreement of sale, or wanted to commit any breach of it. Thus the fact that defendants 1 and 2 did not obtain an encumbrance certificate within the period of three months cannot be considered to be a default on the part of defendants 1 and 2 which can lead to any inference they were not willing to perform the agreement of sale, or wanted to commit any breach of it. But it is clear from the terms of the agreement Exhibit A-4 that it is not the mere obtaining of the encumbrance certificate by defendants 1 and a within three months which is important, but that defendants 1 and 2 should satisfy the plaintiff about the extent and boundaries of the suit properties after obtaining the encumbrance certificate. The learned Subordinate Judge has referred to the fact that the plaintiff had gone to the suit lands two or three weeks prior to Exhibit A-4 and also in the middle of April, that he had no difficulty in ascertaining the boundaries and the extent of the suit properties, that apart from the sum of Rs. 5,000 paid as advance he has made a further payment of Rs. 3,000 under Exhibit A-11 in pursuance of the letter of request Exhibit A-10 sent by the first defendant and observed that these circumstances would go to show that there was absolutely no difficulty in ascertaining the extent and boundaries of the suit properties and that the probabilities are that the plaintiff was satisfied with regard to the same. It is not possible to accept this finding having regard to the terms of the agreement. Under the terms of the agreement, defendants 1 and 2 should obtain an encumbrance certificate and satisfy the plaintiff about the extent and boundaries of suit properties agreed to be sold under Exhibit A-4. The fact that the plaintiff went to the suit properties on two prior occasions and that he paid a further sum of Rs. 3,000 apart from the advance of Rs. 5,000 already paid by him cannot be taken as satisfying the terms of the agreement of sale as to what defendants 1 and 2 should do. In fact D.W. 4 Raman Pillai admitted in cross-examination that after the agreement of sale, the suit properties were not measured and identified in the presence of the plaintiff. 5,000 already paid by him cannot be taken as satisfying the terms of the agreement of sale as to what defendants 1 and 2 should do. In fact D.W. 4 Raman Pillai admitted in cross-examination that after the agreement of sale, the suit properties were not measured and identified in the presence of the plaintiff. But, here again, we have to point out that the strict non-compliance with this term of the agreement by defendants 1 and 2 could not have been a real grievance for the plaintiff in this case and it is not possible to infer from this circumstance that defendants 1 and 2 were unwilling to perform their part of the agreement. 4. The oral and documentary evidence in this case leave no room to doubt that both the parties were willing to perform the agreement of sale Exhibit A-4 entered into by them till they met in the house of defendants 1 and 2, on 26th May, 1961. On 15th May, 1961, that is the last day of the three months’ period provided under Exhibit A-4, the plaintiff sent the notice Exhibit A-12, to defendants 1 and 2 calling upon them to carry out the terms of the agreement of sale, namely, to produce the -encumbrance certificate, to satisfy him about the extent and boundaries of the suit properties and deliver possession of the suit properties and receive the balance of sale consideration and threatening to file a suit for specific performance and for recovery of damages. But on the very next day, 16th May, 1961, defendants 1 and 2 sent the notice Exhibit A-17 to the plaintiff complaining that the period of three months’ period under the agreement of sale had expired on the previous day, that they were ready and willing to perform their part of the contract and that contrary to the terms of the agreement the plaintiff has not offered to pay the balance and get the sale deed executed. It should be noted that Exhibit A-12 was not posted on the same day. There can be no doubt, as pointed out by the learned Subordinate Judge, that Exhibits A-12 and 17 crossed each other. It should be noted that Exhibit A-12 was not posted on the same day. There can be no doubt, as pointed out by the learned Subordinate Judge, that Exhibits A-12 and 17 crossed each other. But on receiving Exhibit A-12, defendants 1 and 2 sent the reply Exhibit A-19 dated 19th May, 1961, expressing that they were all along ready and willing to execute the sale deed and comply with the provisions of the agreement of sale and complaining that the plaintiff had not come forward to perform his part of the contract to pay the balance of the sale consideration. They even offered to execute the sale in their house on any day between 22nd May, 1961 and 27th May, 1961. In their reply notice defendants 1 and 2 have stated that they had also applied for the encumbrance certificate. The plaintiff sent the reply Exhibit A-18 dated 24th May, 1961 complaining that apart from stating that they could not get the encumbrance certificate, they had not stated whether they were prepared to satisfy him regarding the extent and boundaries of the suit properties and to put him in possession of the same. He however offered to go over to the house of defendants 1 and 2 to get the sale deed executed and registered, as suggested in Exhibit A-19. 5. Admittedly the plaintiff went to the house of defendants 1 and 2 on 26th May, 1961, and met them. But there is a controversy between the parties as to what took place at that meeting. The plaintiff has mentioned in paragraph 7 of the plaint as to what took place in the house of defendants 1 and 2 on 26th May, 1961. He stated that he went to the house of defendants 1 and 2 at Thiruparappu along with P.W1 Cherian and P.W. 3 Purpose and that D.W. 4 Raman Pillai was unable to carry out his assurance to deliver possession of the properties as defendants 4 and 5 had not surrendered their lease. In paragraph 13 of the written statement, the first defendant has generally denied the averments made in paragraph 7 of the plaint. But she has not specifically stated that P.Ws. 1 and 3 did not come to her house on that day. She did not also plead that D.W. 1 Purushothaman Nair was present at that time. In paragraph 13 of the written statement, the first defendant has generally denied the averments made in paragraph 7 of the plaint. But she has not specifically stated that P.Ws. 1 and 3 did not come to her house on that day. She did not also plead that D.W. 1 Purushothaman Nair was present at that time. She pleaded that the plaintiff’s allegation that defendants 4 and 5 did not surrender possession and that Raman Pillai wanted time to discharge them was false. It is pleaded in that paragraph that defendants 4 and 5 had gone out of the properties before 15th February, 1961 and that they had no enjoyment of the properties. It is specifically stated in that paragraph that the plaintiff had no money with him to complete the sale. The evidence of the plaintiff as P.W. 6 as to what took place at the meeting on 26th May, 1961 in the house of defendants 1 and 2 is corroborated by the evidence of P.W.1 Cheriyan and P.W. 3 Punnose. 6. Defendants 1 and 2 have examined D.W.1 Purushothaman Nair and D.W.4 Raman Pillai to speak to their case as to what took place in their house on 26th May, 1961, when the plaintiff came there. It is impossible to place any reliance on the evidence of D.W. 1 Purushothaman Nair. P.Ws. 1, 3 and 6 have clearly stated in their evidence that they went to the house of D.Ws.1 and 2 on the morning of 26th May, 1961, and no suggestion was made to them that the meeting took place in the evening. But D.Ws.1 and 4 stated that the meeting took place in the evening of 26th May, 1961. D.W.1. Purushothaman Nair had no dealings with D.W.4, Raman Pillai. He stated that he had gone to Raman Pillai’s house once or twice prior to that occasion, but he could not give the dates when he went there and stated that there was no special purpose for those visits. The explanation of D.W.1 that he happened to be in the house of D.W. 4 Raman Pillai at the crucial time as he went in search of a carpenter who was living in front of Raman Pillai’s house is hardly credible. He stated in cross-examination that he began the construction work in June, 1961 and that it was over by the end of 1961. He stated in cross-examination that he began the construction work in June, 1961 and that it was over by the end of 1961. So he could not have gone in search of a carpenter on the evening of 26th May, 1961. In reexamination he admitted having stated in cross-examination that the construction work was begun in June, but added that it was only mentioned approximately. According to D.W.1. Purushothaman Nair, when D.W. 4 Raman Pillai expressed his willingness to perform the agreement of sale and showed the encumbrance certificate, the plaintiff stated that he did not want to see the certificate and wanted the money in a week and that D.W. 4 promised to repay the amount within two months. But D.W. 4 Raman Pillai has not stated in his evidence that he promised to repay the amount in two months. It is impossible to place any reliance on the evidence of D.W.1 Purushothaman Nair. Having regard to several strong circumstances which we shall presently advert to it is not possible to rely on the evidence of D.W. 4 Raman Pillai also. 7. D.W. 4 Raman Pillai stated in his evidence that the plaintiff had no money when he came to his house on 26th May, 1961 and wanted him to refund the amount paid by him. Even in paragraph 13 of her written statement, the first defendant has pleaded that the plaintiff had no money with him to-complete the sale. But prior to suit, there was exchange of notices between the parties as evidenced by Exhibit A-24 dated 28th May, 1963 and Exhibit A-28 dated 4th June, 1963. In the reply notice Exhibit A-28, there is no plea that the plaintiff had no money to complete he contract of sale. It is clear from the evidence of the plaintiff that he had considerable means to purchase the suit properties. He joined with his wife and others in executing the sale deed Exhibit A-22, dated 6th May, 1961 for Rs. 95,000 and entrusted Rs. 50,000 out of that amount, with his father-in-law Kuriakose, who has business worth Rs. 20 lakhs, on condition that the amount should be made available whenever he required. P.W. 7 Srinivasan is the manager working under Kuriakose and he produced the cash book Exhibit A-32 containing the relevant entry dated 9th May, 1961 to show that Kuriakose received Rs. 50,000 from the plaintiff. 20 lakhs, on condition that the amount should be made available whenever he required. P.W. 7 Srinivasan is the manager working under Kuriakose and he produced the cash book Exhibit A-32 containing the relevant entry dated 9th May, 1961 to show that Kuriakose received Rs. 50,000 from the plaintiff. The evidence of P.W. 7 Srinivasan is that the cash book is kept in the regular course of business. It is true the entries in the cash book were written by the Accountant Krishnaswamy Iyer and P.W. 7 Srinivasan has no personal knowledge about the relevant entry. But he personally knew about the receipt of Rs. 50,000 by Kuriakose from the plaintiff. He deposed that the plaintiff brought the amount and wanted to it to be repaid at any time he required. This amount was available with the plaintiff for fulfilling (he agreement of sale and in fact he had already paid Rs. 8,000. Thus on the date when the plaintiff met defendants 1 and 2 in their house, that is on 26th May. 1961, he had ample means to pay the balance of sale consideration. Hence the plea of the 1st defendant and the evidence of her husband D.W. 4 Raman Pillai that the plaintiff had no money to complete the contract of sale and therefore he had committed default is clearly false and in fact no attempt was made by the learned Advocate for the appellants, to put forward such a contention before us. 8. The learned Advocate for the Appellants, however, urged that as the plaintiff had utilised the amount for the purchase of other estates in subsequent years and had even taken three months’ time to deposit he balance of sale consideration, it could not be said that he continued to have means to fulfil the contract. It is true the plaintiff admitted that in 1963 he and his wife purchased properties, but no suggestions were made to him that he could not command the necessary funds for the purchase of the suit properties subsequent to his meeting defendants 1 and 2 on 26th May, 1961, and before the date of suit. In fact, there is no such plea in the written statement of the first defendant. There is nothing to show that the plaintiff asked for three months’ time to deposit the balance of sale consideration. In fact, there is no such plea in the written statement of the first defendant. There is nothing to show that the plaintiff asked for three months’ time to deposit the balance of sale consideration. It is quite likely that the three months’ period was provided in the judgment and decree of the trial Court in the usual course without any request for time by the plaintiff. 9. The learned Advocate for the appellants relied on the decision in Veerayya v. N.S. Chowdhary1, in support of his contention that in a suit for specific performance, the plaintiff must show that he was ready and willing to perform his part of the contract from the time the contract was made till the date of the decree. But it is clear from that decision the plaintiff must aver in his plaint that he was ready and willing to perform his part of the contract and that if the averment is traversed he must prove the said averment. The plaintiff in this case pleaded that he was ever ready to do his part of the contract. The first defendant has stated in her written statement the circumstances under which the plaintiff came and went away from her house in May, 1961 and pleaded that the plaintiff had no money with him to complete the sale and so he went away. There is no plea in the written statement of the first defendant that the plaintiff had no sufficient funds subsequent to his purchasing other properties in 1963 and prior to the suit and hence he could not have been ready and willing to perform the suit agreement during the entire period. In Nathu Lal v. Phool Chand2, the Supreme Court has held that a vendor of immovable property under an agreement of sale to whom the vendee has paid part of the sale price and entered into possession cannot call upon the vendee to pay the balance of price before he performs his part of the contract and that he cannot plead that the vendee is not ready and willing to pay the balance on the ground that he had not tendered the amount. It is pointed out in that decision that to prove himself ready and willing, the purchaser need not necessarily produce the money or vouch a concluded scheme for financing the transaction and that if he has an outstanding arrangement with his banker to enable him to draw the amount needed by him for payment to the vendor, that would be sufficient to prove his readiness and willingness. In Bank of India v. J. A. H. Chinoy3, the Privy Council has pointed out that in order to prove himself ready and willing to perform his obligation under a contract to purchase shares, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and that the question is one of fact. The plaintiff in that case had stated that he had no sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. The Privy Council agreed with the following observation of Chagla, A.C.J. “In my opinion, on the evidence already on record it was sufficient for the Court to come to the conclusion that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to work out actual figures and satisfy the Court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury-if the matter was left to the jury in England-would have come to the conclusion that a man, in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2.” For the foregoing reasons, we are unable to uphold the plea put forward by the learned Advocate for the appellants in this Court that though the plaintiff had means to purchase the properties in 1961, he was not in a position to do so after he purchased other properties in 1963, and therefore he could not have been ready and willing to perform his part of the suit agreement even prior to suit. 10. 10. We have referred to the exchange of notices prior to the meeting of the parties on 26th May, 1961 and pointed out as to how they go to show that both the parties were willing to complete the agreement of sale. We have negatived the case of the first defendant put forward for the first time in her written statement that the plaintiff had no money at the time of his meeting her in her house on 26th May, 1961. The plaintiff has pleaded and adduced evidence to show that defendants 1 and 2 were not in a position to complete the agreement of sale as they were not in a position to deliver possession of the suit properties on account of the subsisting lease in favour of defendants 4 and 5. There is ample evidence in this case to prove the plea of the plaintiff that defendants 1 and 2 were not able to fulfil the agreement of sale as they were not in a position to deliver possession of the suit properties. The learned Advocate for the appellants contended that defendants 4 and 5 were only licensees and not lessees of the suit properties and that defendants 1 and 2 could not have had any difficulty in delivering possession of the suit properties to the plaintiff in May, 1961. We are unable to accept this contention. 11. Defendants 1 and 2 have entered into an agreement of lease with defendants 4 and 5. But that document has not been produced in this case. It is true the nomenclature of the document is not conclusive as to the nature of the transaction evidenced by it. Defendants 4 and 5 filed a written statement pleading that they had taken a lease of the suit properties from defendants 1 and 2 and that they were entitled to be in possession as per the Travancore-Cochin Act VIII of 1950. But, subsequently they entered into a compromise with defendants 1 and 2 on 13th March 1964 stating that they had no interest in the suit properties. In fact they went to the extent of stating in the compromise that they had surrendered their rights in favour of defendants 1 and 2 even prior to Exhibit A-4. The fourth defendant Chellayyan Nadar has been examined as P.W. 2 in the suit. In fact they went to the extent of stating in the compromise that they had surrendered their rights in favour of defendants 1 and 2 even prior to Exhibit A-4. The fourth defendant Chellayyan Nadar has been examined as P.W. 2 in the suit. He gave evidence that he and the fifth defendant took a lease of the suit properties from defendants 1 and 2 under an unregistered lease deed and paid pattom and obtained the receipt Exhibits A-1 to A-3 and A-33. The receipt. Exhibit A-1 is dated 29th July, 1961. The receipts Exhibits A-2 and A-3 are for the two subsequent years. These receipts clearly support the case of P.W. 2 Chellayyan Nadar. There is no satisfactory explanation by D.W. 4 Raman Pillai for the issue of the said receipts with the statements contained therein. The explanation of D.W. 4 Raman Pillai that the receipts were written in accordance with the conditions of the lease in order to enable him to collect the arrears has been rightly rejected by the trial Judge as not at all convincing. 12. It is clear from the evidence of the plaintiff that one can reach the suit property by crossing Pechipara reservoir, that there is no regular land route and that one has to pass four or five miles to reach the property by land. P.W. 2 Chellayyan Nadar deposed that he had a separate boat to cross the Pechipara reservoir and that he had obtained boat licence for each of the years till 1964 and that he did not get a boat licence for 1964 as Raman Pillai opposed it. Exhibits A-34 to A-41 are the petitions filed by the fourth defendant for boat licence. Fourth defendant stated that he and the fifth defendant never vacated the property till March, 1964. He has admitted in his evidence that he has also land poramboke near the suit property and that for enjoying it also he applied for boat licence. But it is clear from his evidence that he has paid prohibitory assessment for his enjoying the poramboke land and that the Government filed a case against him in respect of the same. He has admitted in his evidence that he has also land poramboke near the suit property and that for enjoying it also he applied for boat licence. But it is clear from his evidence that he has paid prohibitory assessment for his enjoying the poramboke land and that the Government filed a case against him in respect of the same. Hence he could not have applied for boat licence to the Government on the ground that he wanted it to wrongfully enjoy the poramboke lands of the Government It is true that P.W. 2 would have obtained a boat licence even if he had been a licensee, instead of a lessee. 13. D.W. 5 Sathappa Chettiar, the sixth defendant in the suit, has made several admissions in cross-examination which support the plaintiff’s case that defendants 4 and 5 continued to remain in possession of the suit properties. He stated that he was told that the lessees agreed to vacate and that he purchased the property acting on that representation. It should be noted that his purchase of 69 acres, 64 cents out of the suit properties was after the suit. There can be no doubt that the lessees continued to remain in possession of the suit properties even after the date of suit. D.W. 5 further stated that D.W. 4 Raman Pillai, told him that the lessees agreed to vacate two or three days prior to Exhibit B-3, that is the sale-deed in his favour. His evidence is that the lessees vacated within 1½ to 2 months after Exhibit B-3. The sale-deed Exhibit B-3, is dated 2nd December, 1963. But actually defendants 4 and 5 vacated only several months later in pursuance of the compromise entered into in 1964. 14. It is clear from the evidence of P.W. 2 that he and the fifth defendant sub-leased the suit properties to several persons. P.W. 5 Gnanasikamani, is one of the sub-lessees examined in this case. He and some other sub-lessees have sent the notice Exhibit A-5 dated 1st August, 1962, to defendants 1, 2, 4 and 5 and others. The evidence of P.W.5, Gnanasikamani, is that Raman Pillai came with the plaintiff and wanted him and other sub-lessees to surrender the suit properties, that they demanded Rs. 25,000 for the improvements effected by them and that subsequently that sent the notice Exhibit A-5. The evidence of P.W.5, Gnanasikamani, is that Raman Pillai came with the plaintiff and wanted him and other sub-lessees to surrender the suit properties, that they demanded Rs. 25,000 for the improvements effected by them and that subsequently that sent the notice Exhibit A-5. In Exhibit A-5, it is stated that there were about hundred sub-lessees, but in his evidence P.W. 5, has stated that there are sixty sub-lessees. But when he was confronted with Exhibit A-5, he stated that the averment in Exhibit A-5, about the existence of hundred sub-lessees is true. The evidence of P.W. 2 Chellayyan Nadar, is that he and the fifth defendant had given sub-leases and the sub-lessees sent the notice on hearing about the proposed sale of the suit properties. The learned Advocate for the appellants commented on the non-mention of subleases in the plaint, or in the notice sent by the plaintiff. It is unnecessary to refer to the sub-leases in the plaint. The suit is for specific performance. The allegation in the plaint is that defendants 1 and 2 committed default in not delivering possession of the suit properties. The reason for such default is the existence of lessees and sub-lessees. The plaintiff was cross-examined about his not having specifically referred to the possession of the lessees in his notice, Exhibit A-12. He gave an explanation that any such reference to the lessees in his notice would give them a handle to claim possession and that his Advocate advised him not to refer to the lessees and the sub-lessees in his notice. This explanation has been rightly accepted by the learned Subordinate Judge. There can be no doubt that D.W. 4 Raman Pillai, who was acting on behalf of defendants 1 and 2, was not in a position to deliver possession of the suit properties to the plaintiff in accordance with the terms of the agreement of sale Exhibit A-4, and hence he has been taking time to evict the lessees and sub-lessees. P.W.1, states in his evidence that when he went with the plaintiff to the house of defendants 1 and 2, on the morning of 26th May, 1961, Raman Pillai told the plaintiff that he wanted time to evict the tenants before executing the sale-deed. P. W. 3, Ponnose corroborated the said evidence by stating that Raman Pillai took time to evict the lessees. The evidence of P.Ws. P. W. 3, Ponnose corroborated the said evidence by stating that Raman Pillai took time to evict the lessees. The evidence of P.Ws. 1 and 3, corroborates the evidence of the plaintiff that defendants 1 and 2 failed to complete the agreement of sale on account of their inability to secure possession of the suit properties from the lessees and the sub-lessees. 15. We are unable to accept the contention of the learned Advocate for the appellants that defendants 4 and 5 were only licensees and not lessees. He argued that defendants 1 and 2 retained possession of the suit properties in which there were rubber plants and trees and defendants 4 and 5 were only permitted to cultivate tapicoa plants and remove the same. Under section 105 of the Transfer of Property Act, "a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms". The learned Advocate for the appellants referred to paragraph 17 at page 10 in Woodfall on Landlord and Tenant, Volume 1, in support of his contention that there should be exclusive possession with a person to constitute him a lessee of another. But the heading of the paragraph itself is ‘exception to the test of exclusive possession’. It is clear from that paragraph that an occupier can be held to be a licensee, though in fact he has exclusive possession. The illustration given in that paragraph refers to a •case where on the death of a widow of a statutory tenant, the daughter who had no right to retain possession under the Rent Acts, was allowed by the landlord by way of indulgence to stay there, with, in fact, exclusive possession, for six months paying the equivalent of rent. It was held to be not a case of lease. It was held to be not a case of lease. In Ramamurthy Subudhi v. Gopinath1, it has been held that to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form, that the real testis intention of the parties, whether they intended to create a lease or a licence, that if the document creates an interest in the property it is a lease, but if it only permits another to make use of the property of which the legal possession continued with the owner, it is a licence and that if under the document a party gets exclusive possession of the property, prima facie he is considered to be a tenant, but that circumstances may be established which negative the intention to create a lease. In Baldeo Prasad v. Rewaram Ramnath2, it has been held that if the nature of the acts to be done by the grantee requires that he should be in exclusive possession or if the agreement provides that he shall be in exclusive possession, the proper inference to be drawn would be that it is a lease. But it does not follow that in order to constitute a lease, it is necessary to grant exclusive possession to the transferee. It is clear from the definition of a lease under section 105 of the Transfer of Property Act that what all is required is transfer of a right to enjoy immovable property. It is pointed out at page 656 of Mulla’s Transfer of Property Act, Fifth Edition, that the transfer of a right to the usufruct of the property without possession may amount to a lease and the Full Bench decision in Sanku Krishnan v Hari Prabhu3, is referred to as the authority for this position. It is clear from page 339 of the decision that the tenant in that case was authorised to plant coconut trees and other trees and enjoy the property for twelve years. The tenants in that case had paid a renewal fee on the date of the execution of the document and there was a provision for payment of compensation for the improvements effected by him. The tenants in that case had paid a renewal fee on the date of the execution of the document and there was a provision for payment of compensation for the improvements effected by him. It has been held that the demise and enjoyment of the land was not a mere arrangement for lending money and that the relationship was not primarily that of a debtor and creditor but that of a landlord and tenant. It is clear from the case put forward by the first defendant herself that defendants 4 and 5 were entitled to cultivate the land for raising tapioca, though defendants 1 and 2, retained their right to raise and tap rubber plants and trees. In Sultan Ahmed Rowther v. State of Madras4, the question was whether the assessee was entitled to the benefits of the proviso to section 2 (i) of the Madras General Sales Tax, Act, 1939, in respect of the proceeds of sale of arecanut on the ground that they were sales by a dealer of agricultural or horticultural produce grown on land in which he had interest as owner, usufructuary mortgagee, tenant or otherwise. The assessee in that case who was a dealer in cured arecanut entered into a contract with the owner of a thope containing arecanut palms under which the assessee became entitled to collect the usufruct of the trees in that thope and the period of contract was for one year and even when renewed it was only on an annual basis. It was held that the contract did not amount to a lease of the land itself and that all that the assessee got under the contract was only an exclusive right to the usufruct and that could by no stretch of language be deemed to be an interest in land so as to entitle him to the benefit of the proviso to section 2 (i) of the Act. The decision in Commissioner of Income-tax, Madras v. Yagappa Nadar1. is also the same effect. The decision in Commissioner of Income-tax, Madras v. Yagappa Nadar1. is also the same effect. It has been held in that decision that income derived from toddy is agricutural income when it is received by the actual cultivator, whether owner or leassee of the land on which the trees grow and that if the income is obtained by a person who has not produced the trees from which the toddy is tapped, or has not done any agricultural operation whereby those trees have been raised, it is not agricultural income within the meaning of the Act. In the present case, defendants 4 and 5 were entitled to cultivate tapioca on the suit lands other than the portions occupied by the rubber plants and trees and remove the same. It is stated that the normal period of such cultivation of tapioca is eight months. It could hardly be contended that there is no transfer of a right to enjoy immovable property in such a case. 16. The distinction between lease and licence is mentioned at page 659 of Mulla’s Transfer of Property Act, Fifth Edition. It is pointed out therein that a licence is not assignable, that it does not entitle the licence to sue strangers in his own name, that it is revokable by the grantor except when coupled with interest and that it is determined when the grantor makes an assignment of the subject-matter. It is clear from the facts of this case that defendants 4 and 5 have sub-leased portions of the suit properties to a number of persons who in turn have cultivated the lands. It is not possible to contend that defendants 4 and 5 could not have sued strangers in their own name, if they strangers had infringed their rights. Thus, though defendants 4 and 5 did not have exclusive possession of the suit properties and the possession of the suit properties was with both defendants 1 and 2 and defendants 4 and 5 to enable them to enjoy their respective rights in the rubber plants, trees and tapioca plants there was sufficient, transfer of interest in immovable property by defendants 1 and 2 in favour of defendants 4 and 5 constitute a lease under section 105 of the Transfer of Property Act. For the forgoing reasons, we have no hesitation in finding that defendants 4 and 5 were lessees of defendants 1 and 2 in respect of portions of the suit properties allowed to be cultivated by them with tapioca. 17. The learned Advocate for the Appellants urged that the plaintiff had by his conduct and delay abandoned his right to claim specific performance. We have already rejected the evidence of D.Ws. 1 and 4 that when the plaintiff came to the house of defendants 1 and 2 on 26th May, 1961, he merely wanted a refund of the amount paid by him. D.W. 3, Vasudevan Nair, deposed that the plaintiff told him to persuade D.W. 4 Raman Pillai to refund the advance paid by him and that this was towards the end of May or June, 1961. No such suggestion has been made to P.W. 6 Korah. There was no need for the plaintiff to ask D.W. 3 to intervene in the matter, when even according to defendants 1 and 2, they were ready and willing to refund the advance, after appropriating Rs. 1,000 which they were entitled to forfeit in case the plaintiff committed a breach of contract. It is true that subsequent to the plaintiff meeting defendants 1 and 2 in their house on 26th May, 1961, he sent the notice Exhibit A-24 only on 28th May, 1963 and filed the suit on 16th July, 1963. The learned Advocate for the appellants commented on this delay as supporting his plea that the plaintiff abandoned his rights under Exhibit A-4. We have found that the plaintiff had necessary funds and was ready and willing to perform his part of the agreement and that the transaction could not be concluded as defendants 1 and 2 were not in a position to give actual possession of the suit properties on account of the rights asserted by the lessees and sub-lessees. We have pointed out that D.W. 4 Raman Pillai was taking time on behalf of defendants 1 and 2 to secure possession of the suit properties from the lessees and sub-lessees. Defendants 1 and 2 and defendants 4 and 5 to refused to receive the notice Exhibit A-5 dated 8th January, 1962 sent by the sub-lessees. We have pointed out that D.W. 4 Raman Pillai was taking time on behalf of defendants 1 and 2 to secure possession of the suit properties from the lessees and sub-lessees. Defendants 1 and 2 and defendants 4 and 5 to refused to receive the notice Exhibit A-5 dated 8th January, 1962 sent by the sub-lessees. P.W. 5 Gnanasikamani has stated that D.W. 4 Raman Pillai came with the plaintiff and wanted to secure possession of the suit lands from the sublessees and that the sub-lessees wanted a sum of Rs. 25,000 as compensation for the improvements effected by them. The evidence of the plaintiff is that it was only at the time of sending the notice he knew that D.W. 4 Raman Pillai had been playing false and thereafter he sent the notice. The evidence of the plaintiff is that in February, 1963, Raman Pillai suggested enhanced amount for completing the sale and at that time, he felt that Raman Pillai was evading to fulfil the contract. The plaintiff has alleged in his plaint that he met D.W. 4, Raman Pillai, on a few occasions and impressed on him the necessity for implementing the agreement of sale. This averment is no doubt generally denied in paragraph 14 of the written statement of the first defendant. In the suit notice Exhibit A-24 the plaintiff has referred to his having met Raman Pillai on a few occasions subsequent to the meeting on 26th May, 1961. In the reply notice Exhibit A-28, defendants 1 and 2 have admitted that subsequent to 26th May, 1961. The plaintiff met Raman Pillai, but only wanted return of the advance money. Defendants 1 and 2 denied the plaintiff having met Raman Pillai towards the close of May, 1963. Thus there can be no doubt that the plaintiff was merely giving time to defendants 1 and 2 to secure possession of the suit properties from the lessees and the sub-lessees and deliver actual possession of the suit properties to him and this clearly accounts for his having waited for a period of two years. 18. We are not satisfied that the delay of two years in the circumstances of the case will disentitle the plaintiff from getting specific performance of the agreement of sale Exhibit A-4. 18. We are not satisfied that the delay of two years in the circumstances of the case will disentitle the plaintiff from getting specific performance of the agreement of sale Exhibit A-4. It has been held in a series of decisions that mere delay will not preclude the plaintiff from obtaining specific performance if his suit is otherwise in time. In Jamshed Kkodaram v. Burjoriji Dhunjibhai1, the Privy Council has referred to the principles that govern the construction of a document to find out whether time was of the essence of the contract. It is clear from the decision that prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified. It is however pointed out in the decision that equity will not assist where there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete within a definite time. In Arjuna Mudaliar v. Lakshmi Ammal2, a Bench of this Court has held that mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time and that the delay must be such that it may be properly inferred that the plaintiff has abandoned his right or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. In Sankaralinga v. Ratnaswami3, the entire case law has been reviewed and the above propositions are reiterated. It is also pointed out in the decision that a waiver is not to be inferred merely from the delay in the institution) of the suit. 19. The learned Advocate for the appellants referred to the report of the Commissioner marked as Exhibit A-30 in the suit that there were rubber plants aged about 1½ years spread over an area of seven acres of land. There is dispute between the parties as to the extent of land over which such 1½ years plants existed at the time of the Commissioner’s visit. There is dispute between the parties as to the extent of land over which such 1½ years plants existed at the time of the Commissioner’s visit. According to the plaintiff, the extent was only three acres, but, according to the first defendant the extent was nearly fifteen acres. The learned Advocate for the appellants contended that these rubber plants of 1½ years growth noticed by the Commissioner on nth January, 1964, should have been planted in or about June or July, 1962. He contended that defendants 1 and 2 would not have raised rubber plants if really the plaintiff wanted specific performance of the agreement of sale Exhibit A-4. It is clear from the report of the Commissioner that the rubber plants were planted unscientifically without digging proper pits etc. and it looked more like tapioca plantation than rubber plantation. The Commissioner’s report also refers to the waste committed in tapping the mature rubber trees contrary to the well-accepted practice. It should be noted that defendants 1 and 2 have not produced any accounts, or adduced evidence to show how much they have expended for raising such rubber plants. D.W. 2, Vasudevan Nair, has been examined to speak to the rubber plants in the suit properties. But his evidence is interested and unreliable. Thus there is no satisfactory evidence to show that defendants 1 and 2 expended substantial amounts for raising rubber plants in the suit properties. In Exhibit A-5 the sublessees have complained about defendants 4 and 5 interfering with the rights of the sub-lessees forcibly at the instance of defendants 1 and 2. It is quite possible that in order to assert such illegal possession defendants 1 and 2 raised rubber plants on portions of the suit properties. However, this would not support the plea of defendants 1 and 2 that there was waiver on the part of the plaintiff. We have already pointed out that the plaintiff was always ready and willing to perform his part of the suit agreement and that the default was only on account of the inability on the part of defendants 1 and 2 to secure possession of the suit properties to the plaintiff, 20. We have already pointed out that the plaintiff was always ready and willing to perform his part of the suit agreement and that the default was only on account of the inability on the part of defendants 1 and 2 to secure possession of the suit properties to the plaintiff, 20. The learned Advocate for the appellants referred to two decisions in support of his contention that this Court should exercise its discretion in refusing to grant specific performance as the plaintiff has come forward with several false contentions. In Satyanarayana v. Yellohi Rao1, the Supreme Court has held that mere delay without more extending up to the period of limitation cannot possibly be a reason for a Court to exercise its discretion against giving relief for specific performance. However, under section 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary. It is pointed out that the scope of discretion even after excluding cases mentioned in section 22 of the Specific Relief Act of 1877, corresponding to section 20 of the Specific Relief Act, 1963, cannot be confined to waiver, abandonment or estoppel and that diverse situations may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It is stated that it may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonable guided by judicial principles and capable of correction by a Court of Appeal. In Subbarayadu. v. Tatayya2, a Bench of this Court refused specific performance on two main grounds, namely, that the appellant-plaintiff had given false testimony in the witness box and that granting specific performance would be doing injustice to the respondent who spent money on improving the property without any protest by the appellant. But it is clear from the facts of that case that even the trial Court refused specific performance on several other grounds. Further, the false testimony which entitled the plaintiff in that suit getting specific performance, related to a false plea that he tendered the full purchase consideration of Rs. 6,000. But it is clear from the facts of that case that even the trial Court refused specific performance on several other grounds. Further, the false testimony which entitled the plaintiff in that suit getting specific performance, related to a false plea that he tendered the full purchase consideration of Rs. 6,000. The contention of the appellants in this case is that the trial Court disbelieved the evidence of the plaintiff in respect of two of the three conditions of agreement of sale Exhibit A-4, namely, the production of the encumbrance certificate and the failure on the part of defendants 1 and 2 to satisfy the plaintiff about the boundary and extent of the suit properties. It is however clear from our discussion that defendants 1 and 2 did not really comply with the conditions as the encumbrance certificate was secured after the expiry of the three months and D.W. 4, Raman Pillai, had admitted clearly in his evidence that after Exhibit A-4 the property was not measured and identified in the presence of the plaintiff. Thus there is no scope for invoking the above decision in Subbarayadu v. Tatayya2. 21. The learned Advocate for the appellants made a faint attempt to question the correctness of the trial Court granting specific performance as well as damages. But there is no substance in this contention having regard to section 19 of the Specific Relief Act of 1877 corresponding to section 21 of the Specific Relief Act of 1963. 22. In the result, the decree and Judgment of the learned Subordinate Judge are correct and they are confirmed. The appeal is dismissed with the costs of the contesting respondent-plaintiff. V. S. ----- Appeal dismissed.