K.Sampath, J.: A.S. No.535 of 1984 arises out of O.S. No.657 of 1976 and A.S. No.596 of 1984 arises out of O.S. No.546 of 1981. There was a joint trial and common judgment. O.S. No.657 of 1976, filed on 23.9.1976, is a suit for specific performance of an agreement for sale of the property set out in the schedule to the plaint. O.S. No.546 of 1981, filed on 28.1.1983, is for partition and separate possession of several items of properties, one of the items being the subject matter of O.S. No.657 of 1976. 2. The plaintiff in O.S. No.657 of 1976 is the 10th defendant in O.S. No.546 of 1981. The 8th defendant in O.S. No.657 of 1976 is the plaintiff in O.S. No.546 of 1981. Defendants 1 to 5 in O.S. No.657 of 1976 are defendants 1 to 5 in O.S. No.546 of 1981. Defendants 6 and 7 in O.S. No.657 of 1976 are defendants 7 and 8 in O.S. No.546 of 1981. Defendants 11 to 14 in O.S. No.657 of 1976 who are defendants 11 to 14 in O.S. No.546 of 1981 are the legal representatives of the sixth defendant/ Maruthappan alias Kulandaiappan. The 9th defendant in O.S. No.657 of 1976 is the 6th defendant in O.S. No.546 of 1981. The 10th defendant in O.S. No.657 of 1976 is Indian Overseas Bank and it is not a party in the other suit, while one Pandu Rangan a lessee is the 9th defendant in O.S. No.546 of 1981 and he is not a party in O.S. No.657 of 1976. 3. The 10th defendant in O.S. No.657 of 1976 is Indian Overseas Bank and it is not a party in the other suit, while one Pandu Rangan a lessee is the 9th defendant in O.S. No.546 of 1981 and he is not a party in O.S. No.657 of 1976. 3. The case in O.S. No.657 of 1976 is as follows: The plaintiff and one Rangasamy Konar entered into an agreement for sale on 1.7.1974 as per the terms of which Rangasamy Konar agreed to sell his property, described in the schedule to the plaintiff, for Rs.37,500 and received a sum of Rs.10,000 as advance on the same day; Rangasamy Konar represented to the plaintiff that the property belonged to him absolutely under a Court sale in his favour, that there were no encumbrances over the said property excepting a mortgage for Rs.17,000 in favour of the 10th defendant/ bank; some tenants and defendants 6 and 7 were occupying a portion of the property; it was agreed that the vendor Rangasamy Konar should give vacant possession to the plaintiff and in case of his default, the sale price should be reduced by Rs.36,000; the plaintiff had to pay the amount due to the 10th defendant/ bank from the balance of sale price, and to take a sale within a period of six months; Rangasamy Konar died on 27.8.1974; the first defendant Rangammal is his wife and defendants 2 to 5 his children; the plaintiff had been requesting them to get him vacant possession of the suit property, to cooperate with him for payment of the debut due to the 10th defendant and to get the documents from it, to produce the encumbrance certificate as mentioned in the sale agreement, and to execute the sale on receipt of balance sale price; he could not do anything about it as the 6th and the 7th defendants Ramaswamy and Krishnan started laying claim over the suit property stating that it was a joint family property belonging to the family consisting of themselves, defendants 8 and 9 and Late Rangasamy Konar; the plaintiff caused a notice to be issued on 22.12.1974 to defendants 1 to 5 calling upon them to properly complete the transaction; defendants 1 to 5 caused a reply to be sent with allegations charging the plaintiff; completion of the sale outside the Court having become impossible on account of the unhelpful and non-cooperative attitude of defendants 1 to 9, the suit came to be filed; the plaintiff was always ready and willing to perform his part of the contract; he was possessed of sufficient funds; he offered to pay to the 10th defendant and defendants 1 to 5 the amount due to them; he had done everything expected of him under the said agreement; he was ready and willing to deposit the balance sale price of Rs.26,000 as per the orders of the Court; the plaintiff was a tenant of a portion of the suit property; on account of failure on the part of defendants 1 to 9 and their wrongful claim, there were negotiations between the parties for quite a long time; the plaintiff was not successful and the transaction could not be completed; the plaintiff was entitled to possession and mesne profits; the property belonged to late Rangasamy Konar absolutely by virtue of the Court sale; there were proceedings in Court, in O.S. No.1066 of 1973, on the file of the District Munsif’s Court, Coimbatore, treating Rangasamy Konar as absolute owner of the suit property; the claim of defendants 6 to 9 was false; they were made parties so that the suit could be decided in their presence; if and for any reason the suit property is a joint family property of Rangasamy Konar and defendants 6 to 9, then Rangasamy Konar as eldest member should be deemed to have entered into the agreement as Kartha of the family and the sale being for discharge of antecedent debt and for necessity and benefit, defendants 6 to 9 were also bound by the agreement of sale and they were also bound to execute and register the sale deed in favour of the plaintiff; defendants 6 and 7, who were in possession of a portion of the suit property, were bound to deliver possession of the said portion to the plaintiff, if for any reason the specific performance of the sale could not be ordered, the plaintiff would be alternatively entitled to refund of the advance amount of Rs.10,000 together with interest at 12% per annum and the costs of the suit; the plaintiff was through out ready and willing to pay the principal amount due to the 10th defendant with interest within the period provided in the agreement; defendants 1 to 9 made it impracticable and impossible for the plaintiff to pay the said amount by their acts and conduct and the right put forward by defendants 6 to 9; the tenth defendant obtained a decree in O.S. No.351 of 1976 on the foot of the mortgage, dated 2.3.1973 in his favour and brought the suit property for sale in E.P.R. No.252 of 1978; the plaintiff was not impleaded as party in that suit; in order to preserve the plaintiff’s rights under the agreement for sale, the plaintiff deposited the entire decree amount of Rs.29,201 as per the decree, in favour of the tenth defendant within the period provided in the agreement, dated 1.7.1974; on account of default and untenable plea and conduct of the defendants, the plaintiff was constrained to pat extra amount to the tenth defendant; the plaintiff was entitled to recover the difference from defendants 1 to 9 personally as well as from the suit property; the plaintiff was entitled to the 10th defendant’s right as a mortgage and a right of subrogation if for any reason the Court held that the plaintiff was not entitled to specific performance; the plaintiff also came to know that one Savithriammal had an encumbrance over the suit property; he therefore issued a notice to the said Savithriammal, who had sent an evasive reply disclaiming any right over the suit property; and, since the tenth defendant was also interested in the suit property, it was made as a party. 4. The second defendant filed a written statement on 24.2.1977 and the same was adopted by defendants 1 and 3 to 5. It was stated as follows: It was not correct to say that defendants 2 to 5 refused to co-operative with the plaintiff to deliver vacant possession of the suit property, and to clear the debt is due to the 10th defendant; defendants 6 to 9 were unnecessary parties; the suit was bad for mis-joinder; it was not correct to say that the plaintiff was always ready and willing to perform his part of the contract; it was the plaintiff who had committed the breach and tried to throw the blame on defendants 1 to 5; the plaintiff was not possessed of sufficient money to discharge the loan due to the 10th defendant; the plaintiff ought to have cleared the loan due to the 10th defendant on or before 1.10.1974; he did not do so; he had committed breach; the suit property was the separate property of Late Rangasamy Konar; defendants 6 to 9 had not share in the suit property; the plaintiff was not entitled to any relief; it was due to the plaintiff’s failure to discharge the loan due to the tenth defendant out of the sale consideration, the tenth defendant filed a suit in O.S. No.351 of 1976 for recovery of the loan; defendants 1 to 5 had not committed any breach; since the plaintiff was at fault and failed to perform his obligation under the said contract, he was not entitled to get back the earnest money paid and forfeited the sum of Rs.10,000 the suit had to be dismissed with costs. 5. The 10th defendant filed a written statement on 27.1.1977 admitting that there was a mortgage by Rangasamy Konar in its favour in respect of the suit property; the suit property, absolutely, belonged to Rangasamy Konar and on his death to defendants 1 to 5; defendants 6 to 9 had no right, title or interest in the suit property; and in view of the mortgage created by Rangasamy Konar, the 10th defendant filed O.S. No.351 of 1976 for recovery of money due, that it was always willing to receive the dues under the mortgage. 6. 6. Defendants 6 to 8 in their written statement, filed on 9.3.1977, contended as follows: The suit property was not the self acquired property of Rangasamy Konar; the entire earnings of his younger brothers were utilised for purchasing the suit property; the house with the suit property was purchased out of the common funds of the family in the name of Rangasamy Konar; some other properties were also purchased in his name; the suit property was a joint family property; the alleged agreement by late Rangasamy Konar was not valid under law; defendants 5 to 9 colluded with and instigated the plaintiff to file O.S. No.657 of 1976 in order to swallow the entire joint family properties; the plaintiff was aware of the joint status of the family since he was a tenant in the said premises for more than 7 years prior to the suit; the value of the suit would be Rs.60,000; the claim of the defendants was not barred by earlier suit; since the suit property was a joint family property, the suit for specific performance was not maintainable. 7. Defendants 1 to 5 filed an additional written statement on 3.9.1980 contending that the suit property was the self acquired property of Rangasamy Konar; the plaintiff was never ready and willing to pay the amount due to the 10th defendant/ bank; he had no business to deposit the decree amount in O.S. No.351 of 1976; it was only at his risk he had deposited the decree amount; they were not liable to pay any amount to the plaintiff; the suit was liable to be dismissed. 8. Defendants 11 to 14, who are the legal representatives of the sixth defendant, adopted the written statement of defendants 6 to 8. 9. Let us now advert to the facts of the other suit: (a) As already noted the suit is for partition of the property, into five equal shares and allotment of one of such share to the plaintiff and costs. The plaintiff and defendants 6 to 8 and one Late Rangasamy Konar were the sons of one Marutha Konar who died about 40 years prior to the suit. Marutha Konar left the properties described in the plaint document No.1 and considerable amount. After his death, the affairs of the family were managed by Rangasamy Konar as Kartha of the family. The plaintiff and defendants 6 to 8 and one Late Rangasamy Konar were the sons of one Marutha Konar who died about 40 years prior to the suit. Marutha Konar left the properties described in the plaint document No.1 and considerable amount. After his death, the affairs of the family were managed by Rangasamy Konar as Kartha of the family. The other brothers of Rangasamy Konar, namely, defendants 6 to 8, were minors at that time. They were working for the family even at an early age and the entire earnings of the plaintiff and defendants 6 to 8 went tot he hands of Rangasamy Konar. The family consisting of Rangasamy Konar and his brothers were dealing in agriculture, brick business, milk business, a grocery shop and a cycle shop etc. with the efforts of the plaintiff and other brothers, many properties were acquired. They purchased about nine items of properties. Rangasamy Konar had disposed of the said properties one by one except three items of houses and one land. The houses were described as A, B, C schedules in the plaint. The land was described as D schedule in the plant. The land was described as D schedule in the plaint. Rangasamy Konar died on 27.8.1974. The first defendant’s family was residing in the A schedule property. One Shanmugham and Palanisamy were residing as tenants and they vacated after receipt of a notice. The said portions were vacant. Defendants 7, 8 and two other tenants, namely, defendants 9 and 10, were residing in the B Schedule property. The B Schedule property is the subject matter in O.S. No.657 of 1976. The sixth defendant was residing in the C Schedule. The B Schedule property was under the possession and enjoyment of the plaintiff. Moveables worth Rs.10,000 were then available with defendants 1 to 5. The plaintiff was entitled to 1/5th share in A to D Schedule properties. (b) The 10th defendant, who was the plaintiff in the other suit, filed a written statement contending that even if defendants 6 to 8 had equal rights in the suit property, Schedule A, C and D properties could be allotted to those defendants towards their alleged share and the B Schedule property should be allotted to defendants 1 to 5 so that the rights of the 10th defendant could be preserved. He had discharged the mortgage over the B Schedule property and Rangasamy Konar had received Rs.10,000 as advance from the 10th defendant and the plaintiff. Since the plaintiff and defendants 6 to 8 had claimed that Rangasamy Konar was the Kartha of the family, they were liable to pay the 10th defendant the amounts due to it with interest at 12% per annum. (c) The third defendant/ Jagannthan filed a written statement and the same had been adopted by defendants 1, 2, 4 and 5. There was no joint family property available after the death of Marutha Konar. It was false to say that the earnings of the plaintiff and defendants 6 to 8 went into the hands of late Rangasamy Konar. There was no brick business which was looked after by the plaintiff. Even during the life time of Marutha Konar, Rangasamy Konar and his brothers were doing separate business and were earning separately. There were no joint acquisition. Defendants 1 to 5 were the absolute owners of the plaint schedule property and they were in lawful possession and enjoyment of the same after the death of their father. The plaintiff was living in his own house. Defendants 7 and 8 were living in the B Schedule property as tenants of defendants 1 to 5. The legal representatives of the sixth defendant, namely D-11 to D-14, were living in a rented house. Defendants 1 to 5 were in actual possession of all the items of the properties described in the plaint schedule. The plaintiff was not in possession and enjoyment of any property. No property was available for partition, the suit property being the self acquired property of Rangasamy Konar. (d) Defendants 12 to 14 filed a separate written statement supporting the case of the plaintiff. (e) The following issues and additional issues were framed in O.S. No.657 of 1976: (1) Whether the plaintiff is entitled to a decree as prayed for in the plaint for specific performance? (2) Whether defendants 1 to 5 are not at default in the completion of sale free from encumbrance as per the sale agreement, dated 1.4.1974? (3) Whether the suit property is a joint family property as alleged by defendants 6 to 8 and if so the alleged sale agreement is not binding upon them? (2) Whether defendants 1 to 5 are not at default in the completion of sale free from encumbrance as per the sale agreement, dated 1.4.1974? (3) Whether the suit property is a joint family property as alleged by defendants 6 to 8 and if so the alleged sale agreement is not binding upon them? (4) Whether the suit is not maintainable as alleged by defendants 6 to 8, since the property is a joint family property? (5) Whether the plaintiff is entitled to mesne profits as claimed in the plaint? (6) Whether the plaintiff is entitled to the refund and payment of Rs.10,000 paid as advance with interest at 12% p.a. from the date of suit and charge over the properties for the said amount and costs? (7) Whether defendants 1 to 5 are entitled to damages? (8) To what relief? Additional issues framed on 21.1.1982: (1) Whether the plaintiff is entitled to the payment of the sum of Rs.10,641.40 and such further sums paid by him to the 10th defendant? (2) If the plaintiff is found not entitled to specific performance then whether the plaintiff will be entitled to be subrogated to the right of the 10th defendant, and entitled to recover the sum of Rs.29,201 deposited by him towards the decree obtained by the 10th defendant, viz., in O.S. No.351 of 1976 in E.P.R. No.252 of 1978, Sub Court, Coimbatore and the further sum of Rs.523 paid by him to the 10th defendant? (f) The following issues were framed in O.S. No.546 of 1981: (1) Whether the suit properties are joint family properties of the plaintiff, Rangasamy Konar and defendants 6 to 8? (2) Whether the plaint ‘B’ Schedule properties is the self acquired property of Late Rangasamy Konar? (3) Whether the plaintiff and defendants 6 to 9 can question the agreement, dated 1.7.1974 between the 10th defendant and Late Rangasamy Konar? (4) Whether the plaintiff is entitled to any share and if so to what share in the plaint properties? (5) What, if any, are the properties available for partition? (6) To what relief? (g) As per the order in O.P. No.272 of 1982, dated 2.4.1983, the District Court had directed the Subordinate Court to try the two suits jointly. (h) On the side of the plaintiff, Exs.A-1 to A-124 were marked. On the side of the defendants, Exs.B-1 to B-73 were marked. (6) To what relief? (g) As per the order in O.P. No.272 of 1982, dated 2.4.1983, the District Court had directed the Subordinate Court to try the two suits jointly. (h) On the side of the plaintiff, Exs.A-1 to A-124 were marked. On the side of the defendants, Exs.B-1 to B-73 were marked. Exs.C-1 to C-13 were marked as Court exhibits. The plaintiff in O.S. No.657 of 1976 was examined as P.W.1; the plaintiff in O.S. No.546 of 1981 as P.W.2; and one Pongali Konar as P.W.3. Ramaswamy/ 6th defendant in O.S. No.657 of 1976 was examined as D.W.1; one Appukutty as D.W.2; and Palanisamy/ 2nd defendant in O.S. No.657 of 1976 as D.W.3. (i) The learned Subordinate Judge on issues 1 and 2 in O.S. No.546 of 1981, and issue NO.3 in O.S. No.657 of 1976 held that the suit properties in O.S. No.546 of 1981 were not the joint family properties of the plaintiff, Rangasamy Konar, and defendants 6 to 8, that the plaint B Schedule properties were the self acquired properties of Rangasamy Konar, and that the suit property in O.S. No.657 of 1976 was not a joint family property as alleged by defendants 6 to 8. On Issue No.3 in O.S. No.546 of 1981, the learned Subordinate Judge held that defendants 6 to 9 could not question the agreement, dated 1.7.1974 between the tenth defendant/ Balavenkataraman and late Rangasamy Konar. On issues 4 and 5 in O.S. No.546 of 1981 the learned Subordinate Judge held that the plaintiff in that suit was not entitled to any share in the plaint property and that no property was available for partition. On issue No.4 in O.S. No.657 of 1976, the learned Subordinate Judge held that the suit property being the self acquired property of Rangasamy Konar, the suit for specific performance was maintainable. On issue No.2 in O.S. No.657 of 1976, the learned Subordinate Judge held that it could not be said that defendants 1 to 5 were not at default in the completion of sale free from encumbrance as per the sale agreement, dated 1.4.1974. On issue No.6, since the plaintiff was entitled to specific performance, there was no question of refund of any advance to him. On issue No.7, defendants 1 to 5 could not claim any damages. On issue No.6, since the plaintiff was entitled to specific performance, there was no question of refund of any advance to him. On issue No.7, defendants 1 to 5 could not claim any damages. On issue No.5, the plaintiff was not entitled to claim mesne profits since he had only a right to purchase the property. However, if he had paid any excess amount in the sale price, he was entitled to the refund of the said amount with interest there on at admissible rate. On additional issue No.1, the learned Subordinate Judge held that there was no question of granting alternative remedy since the main relief itself was granted. (i) So holding, by common judgment, dated 23.4.1984, he decreed O.S. No.657 of 1976 for specific performance and dismissed O.S. No.546 of 1981 for partition. It is as against that the appeals have been filed. 10. Mr.Thangavel, learned counsel for Mr.K.M. Santhanagopalan, for the appellant in A.S. No.596 of 1984 and for respondents in A.S. No.535 of 1984 made the following submissions: The lower Court seriously erred in finding that the suit properties were not the joint family properties of Rangasamy Konar and his brothers. In this connection, the lower Court failed to see that on the death of Marutha Konar in 1938, Rangasamy Konar, as the eldest male member, became the Kartha of the joint family consisting of himself and his brothers, that in such capacity he acquired properties and dealt with them, and that the mere fact that the properties stood in his name or that he dealt with them would not show that those properties were his separate properties. The learned Judge failed to see that there was absolutely no material to show that Rangasamy Konar had any independent means to make acquisitions particularly when the joint family had a leasehold interest in a large extent of nearly 20 acres of land right from 1925 and in the absence of any proof or any other independent and exclusive means of Rangasamy Konar, it must be deemed that the acquisitions made by him were only the joint family acquisitions. The Court below omitted to see that Rangasamy Konar himself had accepted that the leasehold interest belonged to the joint family, in all the legal proceedings with third parties. The Court below omitted to see that Rangasamy Konar himself had accepted that the leasehold interest belonged to the joint family, in all the legal proceedings with third parties. The mere fact that some of the joint family members set up separate residence, could not mean that they were divided from the joint family. The learned Judge was in error in finding that the family did not possess any ancestral house when there was enough evidence adduced in the case for the contrary position. Even otherwise, the learned Judge was in error in finding that the income from the leasehold properties did not constitute sufficient nucleus for the purchase of properties for the joint family. Equally, the finding by the learned Judge that the family did not remain joint after the death of Marutha Konar was erroneous. 11. The learned counsel also submitted that if it were to be found that all the properties were the joint family properties, then it would follow that Rangasamy Konar had no powers to enter into any agreement with third parties jeopardising the interest of the other joint family members. 12. Mr.R.Srinivasan, learned counsel for the heirs of Rangasamy Konar, who are respondents 1 to 5 in A.S. No.596 of 1984 and appellants in A.S. No.535 of 1984, submitted that there was, absolutely, no evidence regarding the income from the leasehold properties and in such circumstances it should be deemed that the properties were the self acquisitions of the persons in whose names they stood. Further, right through Rangasamy Konar had been in enjoyment and had been dealing with the properties as if they were his own properties, and further that the brothers were living separately and had their own independent avocation. The learned counsel submitted that the brothers had not substantiated their case that they were also contributing their income from other sources for purchasing the suit properties, and that the finding by the lower Court that the properties, subject matter of the suit, were the separate properties of Rangasamy Konar could not be taken exception to. 13. The learned counsel submitted that the brothers had not substantiated their case that they were also contributing their income from other sources for purchasing the suit properties, and that the finding by the lower Court that the properties, subject matter of the suit, were the separate properties of Rangasamy Konar could not be taken exception to. 13. As regards the other suit in which the heirs of Rangasamy Konar have suffered a decree for specific performance with regard to the properties, subject matter of the suit, which is the ‘B’ schedule in the other suit, Mr.R.Srinvasan, attacking the judgment of the lower Court submitted that the lower Court has not properly appreciated the oral and the documentary evidence produced in the case for granting a decree in favour of the plaintiff. In the submission of the learned counsel the materials would amply show that the plaintiff was never ready and willing to fulfil the agreement at any time. He had not taken any efforts within the time to fulfil his part of the agreement. He was required to discharge the mortgagee debit to the 10th defendant/ bank within three months from the date of the agreement and there was clear evidence to show that the plaintiff did not take any steps to discharge the mortgage debt. In Ex.A-2/ notice, the plaintiff’s Advocate had stated that Rangasamy Konar fraudulently suppressed the existence of an equitable mortgage in favour of one Savithri Ammal, and that there were other owners for the property and these statements were false and were so demonstrated to be false, and they had been made by the plaintiff to get out of the agreement. Having found that there was no suppression of the mortgage, that the properly exclusively belonged to Rangasamy Konar, and that the plaintiff was given liberty to deduct Rs.1,500 from the sale price if vacant possession was not delivered as stipulated, the learned Judge fell into error in holding, on the basis of the notice, that the plaintiff was ready and willing to perform his part of the contract. These were false statements deliberately made and the plaintiff was not entitled to the relief of specific performance. The further stand of the plaintiff that the legal representatives of Rangasamy Konar were not co-operative for discharging the mortgage debt had also been shown to be false. These were false statements deliberately made and the plaintiff was not entitled to the relief of specific performance. The further stand of the plaintiff that the legal representatives of Rangasamy Konar were not co-operative for discharging the mortgage debt had also been shown to be false. If really the plaintiff was in a position to discharge the mortgage debt, he would have done that and not set up a false case. Only as he had no means, he was not seriously interested in getting through the transaction, the plaintiff had put forward such a false case. The learned Judge was in error in coming to the conclusion that defendants 1 to 5 did not co-operate with the plaintiff for discharging the mortgage debt due to the bank. The account books produced by the plaintiff also clearly proved that during the relevant period he did not have funds to complete the transaction. Time was the essence of the contract between the parties and non compliance of the terms of the agreement by paying the amount due to the bank within the stipulated time would clearly amount to breach of the contract by the plaintiff. The plaintiff paid the money due to the bank only in the execution proceedings in the suit initiated by the bank nearly for four years after the date of the agreement and this clearly established that the plaintiff had no funds to complete the transaction. Mere capacity to pay without intention or readiness and willingness cannot be accepted. There were clear laches on the part of the plaintiff and the discretionary relief of specific performance ought not to have been granted by the lower Court. The lower Court has not considered the reply issued by the appellants in the proper perspective. 14. Mere capacity to pay without intention or readiness and willingness cannot be accepted. There were clear laches on the part of the plaintiff and the discretionary relief of specific performance ought not to have been granted by the lower Court. The lower Court has not considered the reply issued by the appellants in the proper perspective. 14. Mr.K.Chandramouli, learned senior counsel appearing for the plaintiff in O.S. No.657 of 1976, submitted that the lower Court has rightly found that time was not the essence of the contract, that the plaintiff had always been ready and willing to perform his part of the contract, that the appellants did not co-operate with the plaintiff for paying off the debit due to the bank, that the plaintiff, indeed, discharged the mortgage amount due to the bank, that substantial amounts had been paid towards the sale price for the property, that the lower Court had rightly found that the plaintiff had always been ready and willing to perform his part of the contract and granted the decree, and that no exception could be taken to the same. The learned senior counsel also relied on a few decisions relating to specific performance which will be adverted to in the course of the judgment. 15. On the above submissions, the pleadings and the judgments, the following points arise for consideration in the appeals: (1) Whether the suit property in O.S. No.546 of 1986 are the joint family properties of Rangasamy Konar, the plaintiff and defendants 6 to 8 in that suit, and whether they are entitled to partition and separate possession of the properties? (2) Whether the ‘B’ Schedule property in O.S. No.546 of 1981 which is the schedule property in O.S. No.657 of 1976 is the separate self acquired property of Rangasamy Konar? (3) Whether D-6 to D-9 in O.S. No.657 of 1976 can question the sale agreement Ex.A-1 dated 1.7.1974? (4) Whether the plaintiff in O.S. No.657 of 1976 was ready and willing to perform his part of the contract? (5) Whether defendants 1 to 5 in O.S. No.657 of 1976 were at default? (3) Whether D-6 to D-9 in O.S. No.657 of 1976 can question the sale agreement Ex.A-1 dated 1.7.1974? (4) Whether the plaintiff in O.S. No.657 of 1976 was ready and willing to perform his part of the contract? (5) Whether defendants 1 to 5 in O.S. No.657 of 1976 were at default? (6) Whether the plaintiff in O.S. No.657 of 1976 is entitled to be reimbursed the amount paid by him to Rangasamy Konar as advance and the amount of Rs.29,201 deposited by him towards the decree obtained by the tenth defendant in O.S. No.351 of 1976 in E.P.R. No.252 of 1978, Subordinate Court, Coimbatore, and the further sum of Rs.523 paid by him to the tenth defendant? 16. The learned Subordinate Judge has dealt with the question whether the properties, subject matter of O.S. No.546 of 1981, are the joint family properties or the separate properties of Rangasamy Konar in paragraphs 16 to 26 of his judgment. The learned Subordinate Judge, indeed, finds that the family had leasehold interest in about 19 acres of land and that ever since 1925 Rangasway Konar’s father and his brother had been cultivating the lands, but, according to the learned Judge, there is nothing to show as to what the income from the leasehold properties was and in the absence of any material in that regard it must be deemed that the properties standing in the name of Rangaswamy Konar belonged only to him and his brothers could not claim any rights in those properties. The learned Judge formulated four points which according to him have to be answered to find out the nature of the properties. Those points are: (1) Whether there was an ancestral nucleus and if so, whether it was sufficient for purchasing the properties described in A.S. No.546 of 1981? (2) Whether the family consisting of Rangaswamy Konar and his four brothers remained joint after the death of their father Marutha Konar? (3) Whether the brothers of Rangaswamy Konar were contributing their earnings to Rangaswamy Konar for the purpose of purchasing the properties described in O.S. No.546 of 1981? (4) Whether Rangaswamy Konar had separate income to purchase the properties described in O.S. No.546 of 1981 and whether Rangaswamy Konar had independently dealt with the four items of properties described in O.S. No.546 of 1981? 17. (4) Whether Rangaswamy Konar had separate income to purchase the properties described in O.S. No.546 of 1981 and whether Rangaswamy Konar had independently dealt with the four items of properties described in O.S. No.546 of 1981? 17. While answering these points, the learned Judge, as already noted, found that the family had owned a leasehold land measuring 18.75 acres, family property measuring 4.50 acres and a house. He has referred to the oral evidence of P.W.3 one Pongali Konar, who stated that at the time of his death Marutha Konar, father of Rangaswamy Konar and his brothers, was looking after 4 1/2 all are of leasehold properties, and that he sold his landed properties and the house. The learned Judge also referred to the oral evidence of D.W.3/ Palanisamy denying that the family had owned leasehold properties at the time of the death of his grandfather Marutha Konar, and observed that he was not even born at the time of death of his grandfather, and that he was not expected to know whether the family owned any leasehold properties and any family properties at the time of his grandfather’s death. The learned Judge ultimately found that there were sufficient materials to show that the family owned leasehold properties. He also found that the ancestral house, belonging to the family of Marutha Konar, was sold by Rangaswamy Konar to one Palani Boopathy, son of Krishna Konar, under the original of Ex.A-109 in 1964. The recital in Ex.A-109 is to the effect that Rangaswamy Konar had acquired it from his own funds, and that it was in his possession. Having found that there were sufficient materials to show that the family owned leasehold properties and other properties, the learned Judge strangely concludes, on the basis of the recital in Ex.A-109, that the house property was the self acquired property of Rangaswamy Konar. It would be worthwhile in this connection to refer to Ex.A-106, dated 12.10.1927 under which Marutha Konar, son of Rangaswamy Konar and others, had, on 12.10.1927, mortgaged the house property and the landed property t one Rangaswamy Konar and Krishnan Konar for Rs.1,000. At the time of executing the mortgage deed he had handed over a document, dated 4.4.1923, as title deed to the properties, subject matter of the mortgage. At the time of executing the mortgage deed he had handed over a document, dated 4.4.1923, as title deed to the properties, subject matter of the mortgage. Merely because Rangaswamy Konar had mentioned in the sale deed under the original of Ex.A-109 that a particular property was his self acquired property and he was in possession, that cannot by itself prove that it belonged to him absolutely as his separate property particularly when there are materials in this case to show that the father of Rangaswamy Konar owned ancestral house property and landed property. In Ex.A-106, it is further mentioned in the description of the property that the extent of 4.26 acres in S.No.314 belonged to his father Karuppa Konar and it was in his patta No.211. Under the original of Ex.B-22, Marutha Konar and his brother Krishna Konar executed a sale deed in respect of the house property in favour of Krishnaswamy Konar for Rs.250. Under the original of Ex.B-23, dated 30.10.1936, Marutha Konar and Krishna Konar sold an extent of 75 cents in S.No.314 and S.No.313 for Rs.1,500, the total extent in these two survey numbers are found to be 8 acres and 53 cents. Marutha Konar died on 5.1.1938 and admittedly Rangaswamy Konar was the eldest male member, and he took over management. 18. In paragraph 18 of his judgment, the learned Judge finds that the family had joint family nucleus, but, there was no proof of income from the joint family nucleus. In more places than one the learned Judge finds that after the death of Marutha Konar the properties must have been in the possession of Rangaswamy Konar as the Manager of the joint family consisting of himself and his brothers, that the fact that the brothers of Rangasamy Konar were made parties in O.S. No.728 of 1968 would show that they must have been enjoying the properties as lessees along with Rangaswamy Konar and the contention of the brothers of Rangaswamy Konar that the family owned 18 acres of leasehold land is acceptable. Ultimately, the learned Judge finds that just because the legal proceedings were taken by Rangaswamy Konar, it cannot confer any exclusive rights in the leasehold properties on Rangaswamy Konar and in any event the mate ials available in the records show that the family had its leasehold land. 19. Ultimately, the learned Judge finds that just because the legal proceedings were taken by Rangaswamy Konar, it cannot confer any exclusive rights in the leasehold properties on Rangaswamy Konar and in any event the mate ials available in the records show that the family had its leasehold land. 19. The learned Judge then finds that even during his life time Marutha Konar had sold away the house property and the landed property under Exs.B-22 and B-23 respectively on 30.8.1936 and 30.10.1936, and that there was therefore no property belonging to the family. Thereafter, he proceeds to find that there is no evidence to show that the leasehold property was a fertile land and quite contrary to his earlier finding in para 18 that Rangaswamy Konar and his brothers were enjoying the properties as lessees, he finds in para 20 that in as much as the sons of Marutha Konar were minors and that the property was lying about two miles away from the village, it cannot be stated that all the brothers had joined together in cultivating the property. He further says that there is no definite evidence that the leasehold land was cultivated by Marutha Konar and afterwards by Rangaswamy Konar, wholly forgetting, even as late as 1968 Rangaswamy Konar had defended the suit filed by the owners stating that the family had been in possession and enjoyment of the property leased out from 1925 for over 40 years. He rejects the oral evidence of P.W.2/ Palaniappan, for no justifiable reason, that there was an income of Rs.1,000 per year from the leasehold land. However, holding that there was no corroborative evidence to show that the family of Marutha Konar received substantial income from the leasehold land, the learned Judge finds that the income from the property must have been very meagre. The learned Subordinate Judge has not properly read the oral evidence of P.W.3/ Pongali Konar, who was 82 years old at the time he gave evidence- 20. The learned Judge in para 22 states as follows: “P.W.2 Palaniappan’s evidence discloses that Rangaswamy Konar was about 23 years of age at the time of the death of Marutha Konar and the other sons of Marutha Konar namely Palaniappan, Maruthappan, Ramaswamy and Krishnan were aged 18 years, 16 years, 14 years and 1 1/2 years respectively at the time of the death of Marutha Konar. It is seen from his evidence after the death of Marutha Konar, all the brothers remained joint and the family was looked after by Rangaswamy Konar. It may be true that after the death of Marutha Konar, the eldest male member namely Rangaswamy Konar was looking after the family for some years. But there is no definite evidence to show that the family remained joint afterwards.” Merely because some of the members of a joint family had separate residence, it would not follow that they had separated and the joint family ceased to exist. The learned Judge rejects the evidence of P.W.2 regarding the contribution by the members of the joint family and finds that the properties were the separate properties of Rangaswamy Konar. 21. It is now necessary to refresh ourselves with the principles of HINDU LAW regarding “joint family”. Sec.233 of Mulla Hindu Law, 18th Edition, Page 400, states as follows: "Presumption As To Coparcenary And Self-Acquired Property: Where a suit is brought by a Hindu to recover property, alleging that it is his self-acquired property, and the defendant contends that it is joint family property, or where a suit is brought by a Hindu for partition of property, alleging that it is joint family property and the defendant contends that it is his self-acquired property, the question arises upon whom the burden of proof lies. The following are the leading rules on the subject: (1) Presumption that a joint family continues joint - generally speaking, ‘the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption’. However, presumption as to jointness, held, stood rebutted on the facts of the case [Shankarrao v. Vithalrao, A.I.R. 1989 S.C. 879]. Also see Naresh Kumar v. Lalli Prasad, A.I.R. 1989 All. 202 (plea as to business started with joint family funds refuted). In other words, ‘given a joint Hindu family, the presumption is, until the contrary is proved, the family continues joint’. The presumption of union is the greatest in the case of father and sons. The presumption is stronger in the case of brothers than in the case of cousins, and the further one goes from the founder of the family, the presumption becomes weaker and weaker. The presumption of union is the greatest in the case of father and sons. The presumption is stronger in the case of brothers than in the case of cousins, and the further one goes from the founder of the family, the presumption becomes weaker and weaker. The reason is that ‘brothers are for the most part undivided; second cousin are generally separated; and third cousins are for the most part separated. In what cases does the above presumption apply? The presumption that a Hindu family continues to be joint is mainly available when the question arises whether a specific property which was admittedly joint at one time has continued to be joint family or it has ceased to be joint by virtue of a separation. If a joint family possessed property, which was admittedly joint, the presumption would be that the property continues to be joint, and the burden would lie upon the member who claims it as his separate property to prove that there was a partition and that he got it on such partition. When the existence of a joint family is not disputed, property held by the family would obviously assume the character of joint family property, strengthening the above presumption based on admitted facts as to jointness. The presumption is peculiarly strong in the case of brothers, but almost nil in the case of third and fourth cousins. Mutation entries may not by themselves be evidence of severance. Even when a Hindu undivided family has ceased to be such in law, it may be deemed to be an undivided family for the purposes of the Income Tax Act of 1922 under Sec.25-A of that Act. (2) No presumption that a joint family possess joint property-There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any peculiar item of the property is joint family property, or when in a suit for a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving it rests on the party asserting it. When in a suit for partition, a party claims that any peculiar item of the property is joint family property, or when in a suit for a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving it rests on the party asserting it. To render the property joint, the plaintiff must prove that the family was possessed of some property, with the income of which the property could have been acquired, or form which the presumption could be drawn that all the property possessed by the family is joint family property, or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property, or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognisance of a Court in the same way as any other fact, namely, by evidence. There is at times undiscriminated use of the expression ‘presumption’ in this context. It is to be nderstood to indicate those presumptions of fact, which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general solvent for all cases. Where it is established or admitted that the family possessed some joint property which, from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without the aid of the joint family. However, no such presumption would arise, if the nucleus is such that with its help, the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus must be such that with its help, the property claimed to be joint could have been acquired. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made, is one of the facts depending on the nature and extent of the nucleus. An important element for consideration is the income which the nucleus yielded. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made, is one of the facts depending on the nature and extent of the nucleus. An important element for consideration is the income which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small, might conceivably produce substantial income, which may well from the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. The wide proposition that once the ancestral nucleus is proved or admitted, the onus on the member to prove that the property acquired was his self-acquisition, cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had a result of the nucleus, sufficient surplus income from which the subsequent acquisitions could be made. Alternatively, this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof, which lies on the person who sets up the family character of the property. Where, however, the existence of the nucleus is shown and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in nay such case to that it was acquired by him in circumstances which would constitute it as separate property." [Italics ours] 22. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in nay such case to that it was acquired by him in circumstances which would constitute it as separate property." [Italics ours] 22. It has been held by the Supreme Court in Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, A.I.R. 1969 S.C. 1076, that: "It is now well established that an agreement between all the coparceners is not essential to the distruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. If however the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status." Again in the same decision this is what is stated- “There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out the property was acquired without any aid from the family estate.” 23. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out the property was acquired without any aid from the family estate.” 23. In Ramkunwarbai v. Ranibahu, A.I.R. 1985 M.P. 73, following the decisions of the Supreme Court in Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, A.I.R. 1969 S.C. 1076, K.Obul Reddy v. B. Venkata Narayana Reddy, A.I.R. 1984 S.C. 1171 and the decision of the this Court in Jayaramachandra v. Tulasi Ammal, A.I.R. 1978 Mad. 95, the Madhya Pradesh High Court has held as follows: “Once it is admitted or proved that a family is joint and possesses some joint property called nucleus, the presumption of law is that all property held by or in the hands of any individual member or members is joint family property. Thus being the presumption, if any member of the family claims any portion of the property as his separate property, the burden lies upon him to show that it was his separate property. Unless the source of money is sufficiently explained, the newly acquired property would be presumed to be joint family property.” 24. The relevant documents are Ex.B-17, dated 24.3.1941, Ex.B-18: A-107, dated 30.6.1943, Ex.B-20: Ex.A-108, dated 7.10.1946 and Ex.B-2 dated 14.6.1958. The properties, subject matter of Ex.B-2 is the property subject matter of the agreement in O.S. No.657 of 1976, it has been shown as ‘B’ Schedule in O.S. No.546 of 1981. The relevant documents are Ex.B-17, dated 24.3.1941, Ex.B-18: A-107, dated 30.6.1943, Ex.B-20: Ex.A-108, dated 7.10.1946 and Ex.B-2 dated 14.6.1958. The properties, subject matter of Ex.B-2 is the property subject matter of the agreement in O.S. No.657 of 1976, it has been shown as ‘B’ Schedule in O.S. No.546 of 1981. It is the case of the plaintiff in O.S. No.546 of 1981, Palaniappan, that himself, defendants 6 to 8, and Rangasamy Konar were the sons of one Marutha Konar; Marutha Konar left properties and considerable money; on his death Rangasamy Konar, as the eldest male member, assumed charge and was managing the joint family properties; his brothers were minors at that time; they were working for the family even from early age and their entire earnings were handed over to Rangasamy Konar; they were dealing in agriculture, brick business, milk business, a grocery shop and a cycle shop; they further relied on certain other earlier proceedings in which the joint family nature of the properties had been clearly accepted; those exhibits are: Exs.B-1: Suit Register Extract in O.S. No.657 of 1976, on the file of the District Munsif, Coimbatore by Rangasamy Konar; Ex.B-13, dated 5.11.1938, Death Register Extract of Marutha Konar; Ex.A-110, dated 9.5.1968, certified copy of plaint in O.S. No.735 of 1968 on the file of the District Munsif Court, Coimbatore, by Rangasamy Konar against Palani Gounder; Ex.A-112, dated 19.2.1973, certified copy of plaint in O.S. No.197 of 1973 on the file of the Sub-Court, Coimbatore, by Rangasamy Konar against Palani Gounder; Ex.A-122, dated 18.3.1970 being the xerox copy of the common judgment in O.S. No.728 of 1968 and O.S. No.735 of 1968 on the file of the District Munsif Court, Coimbatore; Ex.A-110, dated 9.5.1968 is the certified copy of the plaint in O.S. No.735 of 1968 on the file of the District Munsif Court, Coimbatore filed by Rangasamy Konar against Palani Gounder; Rangasamy Konar had claimed that he was a cultivating tenant of the plaint schedule properties and had been in continuous and uninterrupted possession and enjoyment for the past several years; originally the suit properties were leased out to his father Marutha Konar and his paternal uncle Krishnan Konar in 1925 under a registered lease, dated 25.11.1925; ever since his family had been in continuous possession and enjoyment in the capacity as lessees from the father of defendants 1 and 2 therein Nanjukutty Gounder and one Marutha Kutty Gounder, brother of the third defendant and father of the fourth defendant therein; and, he further claimed that he had been in possession and enjoyment not only as lessee but also as owner since he had already entered into an agreement with the defendants for the outright sale of the leasehold, Ex.A-111. 25. Even as late as 1968 the brothers were having the leasehold property. If, as found by the learned Judge, they were not yielding any income, they would not have continued in possession. The total extent of leasehold land was nearly 20 acres. At some point of time in 1967, some disputes arose between Rangasamy Konar and the owners. They contended that after receipt of Rs.7,000, Rangasamy Konar had surrendered possession. This was denied by Rangasamy Konar. The learned Subordinate Judge, as already noted, accepts that the leasehold land was ancestral nucleus on the basis of Rangasamy Konar’s pleadings in the suits. But holds against his brothers on the ground that they have not proved that there was sufficient income. It was already noted, if there was no income, it was very unlikely that from 1925 Rangasamy Konar’s family would have been in possession as cultivating tenants. The onus has been wrongly cast by the learned Subordinate Judge. There is no evidence on the side of the heirs of Rangasamy Konar that at the time the properties were acquired in 1941, 1943, 1946 and 1958 he had any independent source of income. What kind of business he was independently doing has not been pleaded or proved. Might be he had started some business, but, unless independent means is shown, it cannot be held that the properties were his separate properties. 26. We have already noted that there are documents to show that Rangasamy Konar’s father Marutha Konar had other properties. Marutha Konar died in 1938. Between 1938 and 1946 or even thereafter as to what was the source of income of Rangasmy Konar, there is no evidence. The learned Subordinate Judge refers to various transactions, such as, lease deeds, etc. and they naturally stand in the name of Rangasamy Konar. The mere fact that Rangasamy Konar was dealing with them, it cannot mean they were his separate properties. Any transaction was in his capacity as joint family Manager. His heirs cannot take advantage of his wrongs. We cannot therefore accept Mr.Srinivasan’s arguments as regards the nature of the properties on the ground that there is no evidence with regard to the income from the leasehold property. This proposition goes against the very grain of the concept of Hindu Joint Family. Being the joint family Manager he has certain advantages as well as handicaps. We cannot therefore accept Mr.Srinivasan’s arguments as regards the nature of the properties on the ground that there is no evidence with regard to the income from the leasehold property. This proposition goes against the very grain of the concept of Hindu Joint Family. Being the joint family Manager he has certain advantages as well as handicaps. In contradistinction to a property standing in the name of a junior member being treated as his separate acquisition, unless the contrary is proved, in the case of the Kartha it is the other way about and if he has to claim any real estate standing in his name as his own he has to do a lot of explaining how he had not touched the joint family funds for acquiring it, and utilised his own independent means which was always so identifiable, how he had brought it into the common hotchpot and so on and so forth. he or persons claiming under him as his separate property have a tough job ahead. 27. In coming to the conclusion that the properties were the separate properties of Rangasamy Konar, the learned Judge has merely relied on the oral evidence of D.W.3, the second defendant in O.S. No.657 of 1976, that Rangasamy Konar and one Palaniappan were running a ration shop from 1940 onwards, that a provision store was run by Rangasamy Konar and Kuppuswamy Konar, and that one Nalli Konar and Rangasamy Konar jointly manufactured bricks for some years. D.W.3 was born in 1943. He could not have had knowledge of what happened in 1940-46 or even with regard to the propperty purchased in Court auction by Rangasamy Konar in 1958. 28. The learned senior counsel Mr.Chandra Mouli submitted that in view of Sec.66 of the Code of Civil Procedure the brothers of Rangasamy Konar cannot put forward a case that the property purchased in Court auction by Rangasamy Konar was for the joint family. 29. We do not accept this submission. Unless Rangasamy Konar had any independent source of income which he had set apart separately and purchased the property in Court auction, it must be deemed that the consideration had proceeded only from the joint family offers. 30. 29. We do not accept this submission. Unless Rangasamy Konar had any independent source of income which he had set apart separately and purchased the property in Court auction, it must be deemed that the consideration had proceeded only from the joint family offers. 30. We therefore hold that for the reasons stated above it is not possible to sustain the finding by the learned Subordinate Judge that the suit properties in O.S. No.546 of 1981 are the separate properties of Rangasamy Konar, and Rangasamy Konar’s brothers cannot claim any right in those properties. The learned Judge has misapplied the principles of Hindu Law Joint family system and reached an erroneous finding. We, therefore, hold that the suit properties in O.S. No.546 of 1981 are joint family properties of Rangasamy Konar, the plaintiff, and defendants 6 to 8 in that suit and they are entitled to partition and separate possession of those properties. We further hold that the ‘B’ schedule property in O.S. No.546 of 1981 which is the plaint schedule property in O.S. No.657 of 1976 is not the separate self acquired property of Rangasamy Konar. 31. The next question is whether defendants 6 to 9 in O.S. No.657/1976 can question the sale agreement/ Ex.A-1, dated 1.7.1974. Rangasamy Konar was the Kartha of the joint family and as Kartha he was entitled to enter into an agreement for sale of family property or discharging family debts or for necessity or for benefit of the estate. There is enough evidence in this case to show that the joint family was indebted to the 10th defendant/ bank. A major portion of the consideration fixed under Ex.A-1/ agreement between the plaintiff in O.S. No.657 of 1976 and Rangasamy Konar is towards discharge of the mortgage debt due to the bank. The agreement entered into by Rangasamy Konar with the plaintiff in O.S. No.657 of 1976 will be binding on the other members of the joint family. However, the question which still remains to be answered is whether the plaintiff in O.S. No.657 of 1976 is entitled to specific performance. 32. The plaintiff in O.S. No.657 of 1976, Balavenkataraman, entered into an agreement for sale under Ex.A-1 on 1.7.1974. However, the question which still remains to be answered is whether the plaintiff in O.S. No.657 of 1976 is entitled to specific performance. 32. The plaintiff in O.S. No.657 of 1976, Balavenkataraman, entered into an agreement for sale under Ex.A-1 on 1.7.1974. As per the terms of the said agreement, the property, consisting of three shops and two houses situated over an extent of 10 cents of land, is to be sold to the plaintiff for a total consideration of Rs.37,500 out of which Rs.10,000 is to be paid on the date of the agreement. The sale is to be completed within a period of six months therefrom by payment of the balance of consideration. Out of the balance of Rs.27,500 the purchaser has to pay the amount due to Indian Overseas Bank. Sai Baba Colony, Coimbatore/ 10th defendant with whom the original documents had been deposited and Rs.17,000 borrowed, and after deducting the amount thus paid to Indian Overseas Bank, which is the 10th defendant, the amount remaining after discharge of the bank loan, the vendor has to receive from the purchase without demur, that on or before 1.1.1975 the tenants in the occupation of the property as also the vendor’s brothers occupying a portion of the property have to be evicted and possession to be handed over to the purchaser, that in case any other debt is found to be due from the vendor, the purchaser has to discharge that debt also and to pay only the balance, that in case the vendor is not able to vacate the tenants and other persons in the property before th time stipulated, the purchaser is entitled to deduct a sum of Rs.1,500 out of Rs.37,500 fixed as consideration for the property, and the property is to be sold for Rs.36,000. The agreement further provides that in case the vendor is unable to give possession free from encumbrance, the vendor shall return the advance of Rs.10,000 to the purchase together with a further sum of Rs.10,000 in all a sum of Rs.20,000, and in case the purchaser fails to act as per the terms of the agreement and pays the balance sale consideration to the vendor, the amount of Rs.10,000 paid as advance shall be forfeited. Rangasamy Konar died on 27.8.1974. Rangasamy Konar died on 27.8.1974. After the death of Rangasamy Konar, the plaintiff Balavenkataraman issued a notice under Ex.A-2 on 22.12.1974 through his lawyer to the heirs of Rangasamy Konar stating inter alia as follows: “After his death (Rangasamy Konar) it is now disclosed that he had created an equitable mortgage for a sum of Rs.22,000 in favour of one M.Savitri Ammal, daughter of Marudhachalam Chettiar and wife of Subramania Chettiar on 9.6.1965 agreeing to pay the same with interest at 9% per annum hypothecating the properties described below. He had not paid, so far either interest or the principal towards the said mortgage. So the mortgage amount now due to the said Savithriammal comes to about Rs.40,000. M.Rangasamy Konar has fraudulently suppressed the said equitable mortgage when he had entered into an agreement for the sale of the said property with my client. Further, the brothers of the said M.Rangasamy Konar, viz., M.Rangasway alias Ramankutty-1, M.Krishnan alias Kuttipaiyan-2 who are in occupation and possession of a portion of the house claim right and title over that the said property and they openly claim and assert that they are the co-owners and sharers of the said property. The other two brothers by name M.Palaniappan alias Chinnanna, M.Krishnan alias Kulandan also lay claim similarly over the said property. The said M.Rangaswamy Konar did not disclose all these facts to my client fraudulently but he asserted that he would deliver vacant possession of the said house by vacating his brothers and tenants within the stipulated period of six months. My client is a tenant in occupation of a portion of the property for residential and non-residential purposes. He has been ready and willing to get the sale of the said property within the said period of six months. Since the death of the said M.Rangaswamy Konar, it is revealed that there is an equitable mortgage of Rs.22,000 with interest at 9% per annum, to one Savithriammal amounting to about Rs.40,000 as stated above and that there is a claim of right and title over the said house property by the brothers of the said M.Rangaswamy Konar, deceased...... Since the death of the said M.Rangaswamy Konar, it is revealed that there is an equitable mortgage of Rs.22,000 with interest at 9% per annum, to one Savithriammal amounting to about Rs.40,000 as stated above and that there is a claim of right and title over the said house property by the brothers of the said M.Rangaswamy Konar, deceased...... My client is still willing and ready to purchase the said property provided all of you being the heirs and legal representatives of the said late M.Rangaswamy Konar, discharge the said mortgage debt of the said Savithriammal or get a release of the said property from the said mortgagee and deliver vacant possession of the house property by vacating the brothers of deceased Rangaswamy Konar viz., M.Rangaswamy alias Ramakutti and M.Krishnan alias Kuttipaiyan. In default my client repudiates the sale agreement dated 1.7.1974 and you are all liable to return the advance amount of Rs.10,000 with liquidated damages of Rs.10,000 totalling Rs.20,000 with interest at 12% per annum.” 33. it is to be noted at this stage itself that as undertaken by him, the plaintiff did not discharge the loan due to the 10th defendant within a period of three months from 1.7.1974. This is also noticed by the learned Subordinate Judge in para 33 of his judgment that the plaintiff should have deposited the amount due to the bank within three months from 1.7.1974. However, this is given a go-by by the learned Subordinate Judge and in the course of the same paragraph he finds that the fact that the plaintiff sent a notice on 22.12.1974 calling upon the heirs of Rangasamy Konar to execute the sale deed is sufficient to prove his willingness to perform his part of the contract. This, in our view, is clearly erroneous. The plaintiff as P.W.1 trots out a new case in the course of his evidence that he wanted to discharge the bank debt but he was asked to bring the eldest son of Rangaswamy Konar to discharge the debt, and that defendants 1 to 5, who were the heirs of Rangasamy Konar, did not cooperate with him and hence he could not pay the debt due by Rangasamy Konar to the 10th defendant. After extracting this evidence of P.W.1, the learned Subordinate Judge proceeds to frame a point as to whether defendants 1 to 5 had failed to cooperate with the plaintiff to discharge the debt due by Rangaswamy Konar to the 10th defendant and after referring to the various clauses in the agreement as also the notice and the oral evidence of P.W.1 and after finding that the plaintiff need not bother for the debt due to Savithriammal or non-eviction of the tenant since he had got alternative remedy to enforce the debt- remedies having been provided in the agreement itself- and after positively finding that there could not be a valid ground to blame the heirs of Rangasamy Konar, still holds that on the evidence of P.W.1 that the heirs of Rangasamy Konar failed to cooperate to discharge the bank debt appears to be a good ground for non-completion of the obligation on the part of the plaintiff. It has been noticed that only in December, 1978 after the bank had filed the suit and obtained a decree, at the stage of execution he found the money to settle the bank dues. After the alleged instruction by the bank to get the eldest son of Rangaswamy Konar to the bank for completing the formalities, he did not care to call upon the heirs of Rangasamy Konar to cooperate with him in discharging the loan due to the bank nor did he call upon the bank to receive the amount. The bank, which is the 10th defendant in the suit, has in no uncertain terms stated in its written statement its readiness to receive the money due, that was in January, 1977. 34. Para 6 of the plaint states as follows: “The plaintiff states that he was always ready and willing to perform his part of the contract, that he was possessed of sufficient funds and offered to pay to the 10th defendant and defendants 1 to 5 the amount due to them, and that he had done everything expected of him under the said agreement. The plaintiff is ready and willing to deposit the balance sale price of Rs.26,000 as per the orders of the Court.” 35. The plaintiff is ready and willing to deposit the balance sale price of Rs.26,000 as per the orders of the Court.” 35. In the written statement of the 10th defendant it is stated as follows: “With respect to the allegation in para 6 as to the payment of the debt due to these defendants by the plaintiff, these defendants are ready and willing to receive the amount due to them as per the suit claim in O.S. No.351 of 1976.” 36. By ten the tenth defendant had been driven to the necessity of filing a suit for recovery of the amount due. It had also expressed its willingness to receive the amount due, that was on 27.1.1977. The plaintiff did not do anything about it. Nearly two years after that, when the tenth defendant obtained a decree in the suit filed in O.S. No.351 of 1976, put it into execution, brought the property to sale, on 14.12.1978 the plaintiff paid the amount and obtained full satisfaction memo under Ex.A-25. Conceding that the heirs of Rangasamy Konar did not co-operate as stated in his oral evidence and to a limited extent referred to in the plaint, in para 6, what the plaintiff ought to have done was to issue a notice to the heirs of Rangasamy Konar and also to the bank that he had been ready and willing to pay the money due to the bank from Rangasamy Konar. The evidence of P.W.1 that he went to the Bank, and that the bank people required him to bring the eldest son of Rangasamy Konar, is only to be stated to be rejected. Thus, that the plaintiff was not ready and willing to perform his part of the contract, with regard to the discharge of the loan due to the bank has been amply demonstrated by his conduct as narrated above. He should have paid the amount due to the bank by 1.7.1974. Only in December, 1978, he paid the amount in the execution proceedings initiated by the bank and obtained full satisfaction. His projected readiness and willingness to perform his part of the contract is only an empty assertion without really intending to put it into deed. 37. Now let us go to the reply notice issued by the heirs of Rangaswamy Konar under Ex.A-3 on 27.12.1974. His projected readiness and willingness to perform his part of the contract is only an empty assertion without really intending to put it into deed. 37. Now let us go to the reply notice issued by the heirs of Rangaswamy Konar under Ex.A-3 on 27.12.1974. The reply notice specifically states that the house is free from encumbrances except with regard to the bank loan, that the allegation relating to the mortgage in favour of Savithri Ammal is extremely mischievous and a complete lie and there is no such encumbrance over the property and it lies only in the imagination of the plaintiff, that the property, absolutely, belonged to Rangasamy Konar, as his self acquired and none of his bothers had any right over the same, that wholly untenable allegations had been made by the plaintiff with a view to escape from the inconvenient situation, that there is no legal obligation on them to evict the brothers of deceased Rangasamy Konar since the agreement itself provides a clause that in case Rangasamy Konar was unable to get them evicted within the stipulated time, the plaintiff could deduct a sum of Rs.1,500 and that the heirs are willing to abide by the condition, that the plaintiff’s unilateral repudidation of the agreement will not bind them since they have not committed any breach of the agreement, that only the plaintiff had committed breach in not complying with the terms and conditions of the agreement, namely failure to discharge the amount due to Indian Overseas Bank within the stipulated period of three months, that evidently the plaintiff is without funds and he is trying to turn the table against them as if he is an innocent man, and they are under no obligation to return the advance amount along with liquidated damages in a sum of Rs.10,000, that the plaintiff would forfeit the said sum of Rs.10,000 if he failed to complete the agreement as stipulated on or before 1.1.1975 after complying with the terms and conditions of the agreement, that even though the plaintiff had already defaulted in so far as the payment of loan to Indian Overseas Bank was concerned, still they are prepared to condone the same provided he made necessary arrangements for the same and to play the balance amount to them, and provided the plaintiff acted as per the terms of the agreement. Even after this the plaintiff did not comply with the terms of the agreement. He did not discharge the loan due to the bank, nor did he seek the co-operation of the heirs of Rangasamy Konar for discharging the bank loan. The conclusion is inescapable that the plaintiff has never been ready and willing to perform his part of the contract. The contrary finding by the learned Judge cannot at all be sustained. The mere fact that the plaintiff sent a notice within the stipulated time calling upon defendants 1 to 5 to execute the sale deed cannot absolve him and cannot lead to an inference as found by the learned Subordinate Judge that he was always ready and willing to perform his part of the contract. 38. The plaintiff did not lift his little finger and understandably so because he did not have the funds and was not ready and willing to perform his part of the contract. He has not established his capacity to generate funds within the time stipulated. By their reply on 27.12.1974, the heirs of Rangasamy Konar had definitely invoked the clause relating to time and called up[on the plaintiff to comply with the terms of the contract for sale. 39. The learned Subordinate Judge reasoning that Ex.A-1/ agreement merely directs the plaintiff to pay the amount due to the bank within three months from the date of the exhibit does not mean that this period of three months should be construed as the period to perform the contract cannot at all be sustained. The further reasoning by the learned Subordinate Judge that in case the amount due to the 10th defendant was not paid within 3 months as contemplated in the agreement Ex.A-1, it would be only a loss in the payment of the interest, that the deceased Rangasamy Konar would be deprived of some money towards loss of interest and this would not be a ground to hold that time is the essence of the contract, his faulty. The learned Judge is in error in his appreciation of the terms of the contract. One of the conditions required for completion of the contract is the discharge of the bank loan within a stipulated time. Apparently, that was not done by the plaintiff. The learned Judge is in error in his appreciation of the terms of the contract. One of the conditions required for completion of the contract is the discharge of the bank loan within a stipulated time. Apparently, that was not done by the plaintiff. In the notice issued on its behalf also there is no reference made to the so called non-co-operation of the heirs in discharging the amount due to the bank. The long gap of nearly four years by the plaintiff in paying the money due to the bank is not at all explained to the satisfaction of the Court. The learned Judge observed that intervening circumstances prevented the plaintiff from discharging the amount due to the bank. What those intervening circumstances are not spelt out in the judgment. The reasoning of the learned Judge in para 36 of his judgment is also halting. The mere fact that the plaintiff was forced to pay the amount due to the bank in the Execution Proceedings would not mean that he had fulfilled the terms of the contract within the time stipulated. Mr.R.Srinviasan is well founded in his contention that the plaintiff has never been ready and willing to perform his part of the contract. 40. Mr.Chandramouli, learned senior counsel, submitted that in contracts for sale of immovable property time is not the essence and in the instant case it cannot be said that the plaintiff was not ready and willing to perform his part of the contract. 41. Now let us refer to the various decisions relied on by the learned senior counsel. 42. In Jiwan Lal v. Brij Mohan, A.I.R. 1973 S.C. 559, the Supreme Court has held that where the plaintiffs have been pursuing their claim under an agreement and the specific performance of the agreement on the date of the institution of the suit was not likely to cause any prejudice to the other party, the suit could not be dismissed on account of delay. It has not been shown that no prejudice would be caused to the parties by reason of the delay on the part of the plaintiff. When once it is found that he was not ready and willing to perform his part of the contract that is the end of his expedition. His cause has to fail. 43. It has not been shown that no prejudice would be caused to the parties by reason of the delay on the part of the plaintiff. When once it is found that he was not ready and willing to perform his part of the contract that is the end of his expedition. His cause has to fail. 43. In Prakash Chandra v. Angadlal, A.I.R. 1979 S.C. 1241: (1979)4 S.C.C. 393 , it has been held that the ordinary rule is that specific performance should be granted, and it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 44.Gowrammal alias Gowri v. Pechimuthu, (1996)2 M.L.J. 145 deals with a case of agreement for re-purchase. When is stated is that such an agreement is only in the nature of concession or privilege and if the conditions stipulated have not been fulfilled in terms of the contract, the right to purchase is lost. However, it would appear that the ultimate decision has been reversed by the Supreme Court in Pechimuthu v. Gowrammal, A.I.R. 2001 S.C. 2446: (2002)2 L.W. 390. It has been held by the Supreme Court- "Whether an agreement in an option to purchase or an "ordinary" agreement would depend on the interpretation of its provisions. Sometimes the option is expressly and in terms granted. In others the right may be implicit. Thus when an agreement provides that the right to obtain a sale is subject to the fulfilment of certain conditions by the purchaser, the agreement would in effect be an option to purchase, as the right to purchase would only accrue upon the voluntary performance of the conditions specified by the owner. The vendor cannot compel the performance of the conditions by the purchaser and then ask for the contract to be specifically performed." The Supreme Court, in para 19, summed up as follows: "..the mere fact that an agreement for sale is described as a re-conveyance does not by itself mean that it is an option to repurchase nor does it in anyway alter the substance of the deed. It merely records a historical fact - that the property which is to be sold was being purchased by the person who used to be the owner. It merely records a historical fact - that the property which is to be sold was being purchased by the person who used to be the owner. No logical distinction can be drawn between an agreement to re-purchase and an ordinary agreement of purchase just be cause the vendor happens to be the original purchaser and the purchaser happens to be the original vendor. The agreement remains an agreement for sale of immovable property and must be governed by the same provisions of law." 45. We fail to see how the decision in Gowrammal’s case, (1996)2 M.L.J. 145 has nay application to the facts of the present case. 46. The last of the decisions relied on by the learned senior counsel is the one reported in Motilal Jain v. Ramdasi Devi, A.I.R. 2000 S.C. 2408. It is observed as follows: "An averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale." In the case before the Supreme Court, the plaintiff who had entered into contract for purchase of property parted with two-third of the consideration at the time of execution of the contract. The only obligation which he had to comply with was payment of balance of consideration. It was stated in the plaint that he demanded the defendant to receive the balance of consideration of Rs.8,000 and execute the sale deed. The defendant was out of town at the time of notices and when he came back to his place the plaintiff filed the suit against him. There was no reason why he would not pay the balance of one-third consideration of Rs.8,000 to have the property conveyed in his favour. It was held that the plaint clearly indicated the readiness and willingness of the plaintiff. The decision of the Supreme Court turned on the facts of that case and in our view cannot in any way assist the plaintiff. It was held that the plaint clearly indicated the readiness and willingness of the plaintiff. The decision of the Supreme Court turned on the facts of that case and in our view cannot in any way assist the plaintiff. In the same decision, no doubt, it has been held that damages have been claimed as alternative relief and that cannot be a ground to the refusal of the main relief. There can be no quarrel over the proposition laid down by the Supreme Court which is binding on all the Courts in India. Having regard to the facts and circumstances of the case we are of the view that the plaintiff cannot have the relief of specific performance. 47. It will be necessary to refer to the decisions relied on by Mr.Srinivasan for the heirs of Rangaswamy Konar for the sake of completeness. 48. In Parakunnan Veetill Joseph’s son Mathew v. N.Kuruvilla’s son, A.I.R. 1987 S.C. 2328, referring to Sec.20 of Specific Relief Act, the Supreme Court has stated as follows: "Sec.20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is no bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff." 49. In Rangaraju Naidu v. Thiruvarakkarasu, A.I.R. 1995 S.C. 1769, the agreement for sale was executed for discharge of a promissory note debt. Suit for recovery of amounts by money lender was filed. Since the debtor was not in a position to pay, agreement for sale of the property was sought to be enforced. The Supreme Court has held that the Court was not bound to grant specific performance. It granted alternative relief sought for in the suit, namely, decree for refund of money due to moneylender with simple interest. Since the debtor was not in a position to pay, agreement for sale of the property was sought to be enforced. The Supreme Court has held that the Court was not bound to grant specific performance. It granted alternative relief sought for in the suit, namely, decree for refund of money due to moneylender with simple interest. 50.K.S.Vidayanadam v. Vairavaan, A.I.R. 1997 S.C. 1791: (1997)1 C.T.C. 628 was a case where the agreement for sale provided that the vendor should sell the property to the purchaser within six months; the purchaser was required to purchase stamp papers within the said period of six months; the vendor was required to vacate the tenant and to give vacant possession to the purchaser before registration; the purchaser issued notice to the vendor after 2 1/2 years to execute sale deed; the suit for specific performance was filed by the purchaser; it was dismissed by the trial Court; the High Court reversed the judgment of the trial Court and decreed the suit for specific performance; the purchaser failed to - pay the balance money, purchase stamp papers and ask for execution of sale deed, within six months; the value of the property had also substantially risen. The Supreme Court held that these were sufficient grounds to refuse specific performance. The Supreme Court further observed that the Court should bear in mind that when parties prescribe certain time limit for taking steps, the said time limit cannot be ignored altogether on the ground that the time is not the essence of contract relating to immovable property. Even if time is not the essence of contract, person approaching Court should perform his part of the contract within reasonable time and reasonable time should be determined by looking at all surrounding circumstances including express terms of contract and nature of property. 51. In Vasantha v. Senguttuvan, (1997)2 M.L.J. 576 : (1997)2 L.W. 820 , it has been held that even if for a single day, plaintiff-agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continuously from the date of agreement up to the hearing..... ‘Willingness’ must be implement the contract in accordance with the terms, within the stipulated period, or within a reasonable time thereafter. Readiness and willingness must be there continuously from the date of agreement up to the hearing..... ‘Willingness’ must be implement the contract in accordance with the terms, within the stipulated period, or within a reasonable time thereafter. If head the necessary funds, he has to explain why had did not offer or tender the balance sale consideration and get the sale deed. If he does not do, that it would show that he was not ready and willing to perform his part of the contract. 52.Koothapadayachi v. Arjuna Pillai, (1998)1 L.W. 301 was a case where an agreement was executed on 15.6.1976 for executing a deed of conveyance. The suit for specific performance was instituted in 1991 allied that he defendants agreed to extend the time for performance and execute the deed whether called upon to do so, and when the plaintiff issued notice n 1980 the defendants refused to comply and that would furnish the date of the cause of action arising for the suit. It was held that the plaintiff failed to establish the plea as to extension of time and the suit was therefore barred by limitation. It was also held that readiness and willingness had not been established. 53.Indravthi v. Kamala, (2000)4 C.T.C. 278 , arose under the following circumstances: There was an agreement entered into for sale of immovable property. Consideration was agreed to be paid on three different specified dates. The purchaser claimed that he had paid the second instalment to the counsel for seller and that the counsel did not issue receipt but later refunded the said amount as seller did not agree to receive the same. The purchaser subsequently sent a notice stating that the counsel failed to give receipt and also referred to refund of money. The purchaser did not state anything in the said notice about the payment of third instalment scheduled to be paid two days thereafter. In the said notice the purchaser has merely stated that she was willing to pay the consideration. The purchaser did not give any reason for not paying the third instalment even in the subsequent notice. It was held that the purchaser was not ready and willing to perform her part of the contract. Readiness and willingness must be there at commencement of contract and continue to exist till date of suit. The purchaser did not give any reason for not paying the third instalment even in the subsequent notice. It was held that the purchaser was not ready and willing to perform her part of the contract. Readiness and willingness must be there at commencement of contract and continue to exist till date of suit. It was held that the purchaser was not ready and willing to purchase the property. It has been further held in that decision as to when time should be considered as essence of the contract in the agreement for sale of immovable property. Condition regarding time being essence of contract is a matter of consensus between the parties to such contract. Time is essence of contract where time limit has been stipulated for performance of certain obligations and any disregard to such stipulation would amount to ignoring understanding between the parties. 54. In Dadarao v. Ramrao, (1999)8) S.C.C. 416: (1999)9 Supreme 103 . the agreement contemplated that on or before 15.4.1972 the sale deed should be executed. The agreement itself provided as to what was to happen if either the seller refused to sell or the purchaser refused to buy. In that even the agreement provided that in addition to the earnest money of Rs.1,000 a sum of Rs.500 was to be given back to the purchaser and that no sale deed would be executed. The agreement was very categorical in envisaging that a sale deed was to be executed only if both the parties agreed to do so and in the event of anyone of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, Rs.500 in addition to the return of Rs.1,000 was the only sum payable. This sum of Rs.500 perhaps represented the amount of quantified damages or as the defendants would have it, interest payable on Rs.1,000. In the event of the sale deed not being executed, Rs.500 in addition to the return of Rs.1,000 was the only sum payable. This sum of Rs.500 perhaps represented the amount of quantified damages or as the defendants would have it, interest payable on Rs.1,000. If the agreement had not stipulated as to what ws to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the Court for a decree of specific performance but the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs.1,000 plus pay Rs.500 in addition thereto. It was held that there was no obligation on the vendor to complete the sale transaction. 55. In Muthusami v. Angammal, (2002)2 M.L.J. 93 (S.C.), the Supreme Court has referred to of its earlier decision in K.Narendra v. Riviera Apartments (P) Limited, (1999)5 S.C.C. 77 and Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Baribhat Patel, (2001)5 S.C.C. 10 and held that Sec.20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree the specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles. Again, if the performance of a contract involves some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the Court may properly exercise discretion not to decree specific performance and the doctrine of comparative hardship has been statutorily recognised in India. 56. One of us (K.Sampath, J.) had occasion to deal with the question relating to readiness and willingness in Jayakumar v. Robert, (2002)2 L.W. 422 . In para 41, the salient features have been extracted and they are as follows: (1) Both parties to the contract should have performed their respective parts of the contract, all conditions percent, the express and essential terms the implied and essential terms all representations made at the time of the contract on the faith of which it was entered into. In para 41, the salient features have been extracted and they are as follows: (1) Both parties to the contract should have performed their respective parts of the contract, all conditions percent, the express and essential terms the implied and essential terms all representations made at the time of the contract on the faith of which it was entered into. (2) Both the parties must show their readiness and willingness to do all matters and things on their part to be done by them after the contract. (3) The purchaser should be ready with either the funds or should be possessed of the capacity of the capacity to generate funds within the time stipulated. He should also have the necessary willingness of mind to complete the sale from the inception. (4) The vendor should be equally ready and willing to perform his part of the obligations from day one. e.g., clearing the encumbrance if any on the property, procuring the encumbrance certificate, income-tax clearance, steps to get the tenant, if any, in the occupation of the property out, getting consent from other sharers, etc. (5) The position of both the parties should be examined not that of the purchaser alone. (6) Time may not be the essence of the contract. But, if time is to be construed as the essence of the contract, the parties should intend so. (7) If intended in writing, it should be unequivocal and unmistakable. It will not avail if some monetary penalty is imposed in case of default or if the contract provides for extension of time in certain contingencies. It should be specified that the contract will stand cancelled if the contracting parties do not call upon each other to complete the transaction within the time stipulated, by expressing his/her readiness and willingness to honour the terms of the contract and conclude the sale. (8) Equally if not intended in writing, it should be capable of being inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances. Once it is so inferred, as for the cases intended in writing, further exercise should follow - either party to the contract should call upon the other party to complete the transaction making it known that he/she is ready and willing to perform his /her part of the arrangement. Once it is so inferred, as for the cases intended in writing, further exercise should follow - either party to the contract should call upon the other party to complete the transaction making it known that he/she is ready and willing to perform his /her part of the arrangement. (9) If time is not of essence originally, it can be made of essence even subsequently by serving notice on the party. (10) Even if there is default in carrying out the contract within the specified time, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances it is not inequitable, the relief can be granted. (11) Even though time may not be the essence of the contract for sale of immovable property and suit can be filed within the period of three years, provided under Art.54 of the Limitation Act, it should be performed within a reasonable time having regard to the terms of the contract prescribing a time limit and nature of the property and the same cannot be ignored altogether on the ground that time has not been made the essence of the contract relating to immovable properties. (12) The purchaser need not jingle coins or produce the money unless called upon to do so by the Court. 57. Applying the principles, we find that Balavenkataraman, in the instant case, has never been ready and willing to perform his part of the contract. He caused a notice to be issued after the time stipulated under Ex.A-1 to settle the claim of the bank on 22.12.1974, under Ex.A-2. He invented a false reason for not going ahead with his commitment under the agreement. He did not mention about the non-cooperation of the heirs of Rangasamy Konar in discharging the debt due to the 10th defendant bank, nor did he specifically mention about that in his pleading that the bank required the eldest son of Rangasamy Konar to meet them. Only in the course of evidence he trotted out the story in November, 1985. In the reply notice, Rangasamy Konar’s heirs had called upon the plaintiff to comply with his part of the bargain on or before 1.1.1975. He did not do that. He kept quiet, apparently, because he did not have funds. The learned senior counsel Mr.Chandramouli submitted that it is well settled that the purchaser need not jingle coins. In the reply notice, Rangasamy Konar’s heirs had called upon the plaintiff to comply with his part of the bargain on or before 1.1.1975. He did not do that. He kept quiet, apparently, because he did not have funds. The learned senior counsel Mr.Chandramouli submitted that it is well settled that the purchaser need not jingle coins. But then the accounts produced by the plaintiff clearly show that he did not command enough funds to complete the transaction during the relevant period. The amount available in his account at the point of time was next to nothing. He has not established that he had funds elsewhere or that he had cash ready on hand. 58. For all the reasons stated above, we are satisfied that the plaintiff has not been ready and willing to perform his part of the contract. The discretion vested in the Court cannot be exercised in his favour. The reasoning and the conclusion reached by the learned Subordinate Judge cannot be therefore sustained. Consequently, the decree for specific performance has to be set aside. If it is to be so set aside, the further question is whether the plaintiff is entitled to refund of the amount of advance paid by him to Rangasamy Konar. Since we have taken the view that the heirs of Rangaswamy Konar were not at fault, we hold that the plaintiff is not entitled to return of the advance of Rs.10,000 paid by him. However, with regard to the payment of the bank in execution is concerned, heirs of Rangasamy Konar are liable to return the same with simple interest at 9% from the date of such payment, namely, 14.12.1978 till payment. 59. For all the reasons stated above, both the appeals succeed. So far as A.S. No.535 of 1984 is concerned, the decision of the lower Court granting specific performance is set aside and instead the plaintiff will be entitled to refund of the amount of Rs.29,201 with simple interest at 9% per annum, as also Rs.537 paid by him to the 10th defendant. The appeal in A.S. No.596 of 1984 will stand allowed and the suit in O.S. No.546 of 1981 will stand decreed. There will be a preliminary decree for partition and separate possession of the plaintiff’s 1/5th share in the suit properties.