JUDGMENT: On 18.08.1998, this Court made the following order:- "Heard. This appeal is admitted to consider the following substantial question of law. "Whether the appellate Court is not in error in not decreeing the plaintiff's suit for specific performance atleast regarding the half share of defendant No.1 (since the agreement is an admitted document on both sides,) instead of granting a decree for damages." 2. Sri G.Dharma Rao, learned counsel for appellant, had also pointed out to ground No.8 of the grounds of Second Appeal and would maintain that the said question may also, have to be decided as one of the substantial questions of law and the said question is as hereunder: "Whether the lower appellate Court can decide the case without properly framing the point for determination as per the provisions of Order 41 Rule 31 C.P.C. ?" The learned counsel pointed out to the respective pleadings of the parties and the evidence available on record and would maintain that in the light of the nature of evidence available on record and also the findings recorded by both the Court of first instance and also the appellate Court, the suit can be decreed atleast for the half share. The counsel also would maintain that though the granting of the relief of specific performance or refusing thereof is the discretion of the Court, the appellate Court had not exercised the discretion properly, even otherwise, the learned counsel would submit that proper points for consideration had not been framed, and hence, the Second Appeal atleast to be partly allowed decreeing the suit for specific performance to the extent of half share of the father. 3. Per contra, Sri T.S.Anand, learned counsel representing the first respondent, would submit that as against the second respondent, the Second Appeal was dismissed for default and on this ground alone, the Second Appeal is liable to be dismissed in limini. The counsel also would point out that in the light of the clear findings recorded by the appellate Court, while ordering refund of the amount with interest thereon, inasmuch as, alternative relief had been granted and discretion had been exercised properly, the same not to be disturbed. The counsel also would point out that in the light of the clear findings recorded by the appellate Court, while ordering refund of the amount with interest thereon, inasmuch as, alternative relief had been granted and discretion had been exercised properly, the same not to be disturbed. While further elaborating his submissions, the learned counsel pointed out to Section 12 of the Specific Relief Act, 1963 (for short, 'the Act') and would maintain that unless the essentials under Section 12 of the Act are satisfied, the specific performance of part of the contract cannot be granted. While further elaborating his submissions, the counsel would maintain that Order 41 Rule 31 of CPC cannot be said to be mandatory, provided, the appellate Court had discussed the oral and documentary evidence available on record in proper perspective. 4. The substantial question of law on the strength of which the Second Appeal was admitted and yet another substantial question of law, which had been pointed out by the counsel representing the appellant, both the questions already had been specified supra. It is also needless to say that the Second Appeal was dismissed for default as against the second respondent herein. 5. The parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.384 of 1984 on the file of Principal District Munsif, Narsapur. 6.The suit was instituted for specific performance of agreement of sale, dated 21.11.1983, directing the defendants to execute and register the sale deed in favour of the plaintiff within the time stipulated by the Court and in case the defendants failed to do so, the Court to execute and register the sale deed and also prayed for alternative relief. 7. The averments made in the plaint are as hereunder: "The 2nd defendant is the undivided son of the 1st defendant and the 1st defendant is the Manager of the joint family. The defendants are the owners of the plaint schedule property. The schedule property is the dry land fit for house construction. The 1st defendant for his family necessities and as a joint family manager has offered the plaint schedule property for sale. The plaintiff has agreed to purchase it and the price was settled at Rs.14,400/-. The defendants are the owners of the plaint schedule property. The schedule property is the dry land fit for house construction. The 1st defendant for his family necessities and as a joint family manager has offered the plaint schedule property for sale. The plaintiff has agreed to purchase it and the price was settled at Rs.14,400/-. The 1st defendant represented at the time of settlement of terms for sale that the 2nd defendant was a minor and he would join in executing the sale deed in favour of the plaintiff at relevant and appropriate time. As per the settlement of terms of sale, the plaintiff paid Rs.3,500-00 out of Rs.14,400/- on 21.11.1983 and the 1st defendant executed an agreement of sale on 21.11.1983 in favour of the plaintiff. It was agreed in the said agreement of sale that the amount of Rs.3,500/- paid on 21.11.1983 will be taken as advance (bajaana) that the balance of Rs.10,900/- will have to be paid on or before 21.2.1984 to the defendant that in default of payment of balance of sale consideration by the plaintiff, the plaintiff shall pay 12% interest on the said amount to the defendants that if the defendants fail to execute the sale deed and commit default, they will be held liable for any action taken by the plaintiff towards damages that will be caused to the plaintiff and shall give up right of claiming interest on the balance of sale consideration, that the 2nd defendant also would be joined while executing the sale deed in favour of the plaintiff that to deliver the property at the time of execution of sale deed and that to give measurements to item No.2 at the time of registration of sale deed. The plaintiff has made ready with the balance of sale consideration within the stipulated date and demanded the 1st defendant through Ananthapalli Rama Mohana Rao to execute the sale deed and the 1st defendant postponed the execution of sale deed on some reason or other. The plaintiff submits that after he obtained the agreement of sale dated 21.11.1983, he has carted mud valued about Rs.1,000/- into the schedule property. The 1st defendant has also offered to give away the mangoes worth about Rs.1,000/- to the plaintiff but failed to do so. The plaintiff submits that after he obtained the agreement of sale dated 21.11.1983, he has carted mud valued about Rs.1,000/- into the schedule property. The 1st defendant has also offered to give away the mangoes worth about Rs.1,000/- to the plaintiff but failed to do so. The plaintiff even after the stipulated date has demanded the defendants to execute the sale deed after taking the balance of consideration in the presence of mediators, but the defendants did not execute the sale deed and committed default. The plaintiff is always ready and willing to perform his part of contract at all material points of time. But the defendants failed to perform their part of the contract and committed default as per terms of agreement of sale dated 21.11.1983. The plaintiff after waiting for a long time that the defendants will execute a sale deed, ultimately got issued a notice dated 17.10.1984 demanding the defendants to execute the sale deed as per the terms of agreement of sale dated 21.11.1983. The defendants got issued reply notices separately on 27.10.1984 with all false allegations. The plaintiff then issued a rejoinder to the advocates for the defendants on 2.11.1984 along with the demand draft for Rs.3,798/- and informed that time is not the essence of contract between him and the defendants and there was no such term in the agreement of sale. The 2nd defendant is fully aware of the agreement of sale in favour of plaintiff. The sale of the schedule property is for the benefit of the joint family members and even though the 2nd defendant is not represented in the agreement of sale, in view of the fact that the 1st defendant has undertaken that he will execute the sale deed along with the 2nd defendant, the 2nd defendant is bound to execute the sale deed in favour of plaintiff and hence he is added as a necessary party to the suit. The defendants have voluntarily refused to execute the sale deed as prices have gone up between the date of agreement of sale and the stipulated date in the agreement of sale. Hence, as per the terms of agreement, the plaintiff estimates the damages at Rs.8,000/- towards difference of price for which the defendants are liable to pay it. The defendants have no right to refuse the reliefs claimed by the plaintiff. Hence, as per the terms of agreement, the plaintiff estimates the damages at Rs.8,000/- towards difference of price for which the defendants are liable to pay it. The defendants have no right to refuse the reliefs claimed by the plaintiff. Hence, the plaintiff has filed this suit for specific performance of agreement of sale and for other necessary reliefs." 8. The first defendant filed the written statement with the following averments:- It was pleaded that the allegation that the second defendant is the undivided son of the 1st defendant and the 1st defendant is the Manager of the undivided family is not correct. It is also pleaded that the second defendant is the divided son of the 1st defendant. The plaint schedule property is the joint family property of the 1st and 2nd defendants. As the 1st defendant is divided from the 2nd defendant, the 1st defendant had no manner of right to alienate the share of the 2nd defendant. It was also pleaded that it is true that the 1st defendant executed an agreement of sale dated 21.11.1983 relating to schedule property for Rs.14,400/- in favour of the plaintiff and received an amount of Rs.3,500/- as an earnest money. The allegation that the 1st defendant made a representation that his son was a minor and therefore there is no need for him to join him in the agreement is not correct. Time is the essence of the contract as far as the agreement of sale dated 21.11.1983 and the same is clearly established as per the clause (d) of paragraph 6 of the plaint. Ananthapalli Rama Mohana Rao is the brother-in-law of the plaintiff. Even as per the terms and conditions of agreement of sale of caluse (p) of paragraph 6 of the plaint, the property should be delivered at the time of execution of the sale deed. The plaintiff did not mention the names of the mediators nor did he make the allegation about the mediation in his notice dated 17.10.1984. The plaintiff was never ready and willing to perform his part of the contract at all points of time. The plaintiff did not allege in the plaint that he is still ready and willing to perform his part of contract even at the time of filing of the suit or subsequent to the same. The plaintiff was never ready and willing to perform his part of the contract at all points of time. The plaintiff did not allege in the plaint that he is still ready and willing to perform his part of contract even at the time of filing of the suit or subsequent to the same. The plaintiff did not even deposit the sale consideration either in the court at the time of filing of the suit or in any bank prior to the filing of the suit to prove that he has been ready and willing to perform his part of contract. The 1st defendant got issued a reply notice dated 27.10.1984 informing the plaintiff that the plaintiff committed default and breach of contract, therefore, the agreement came to an end as the time was the essence of the contract. The defendant even returned the earnest money of Rs.3,500/- with interest the total comes to Rs.3,790/- by way of a demand draft TT.A/46/504388 dated 25-10-1984 drawn in the name of the advocate for plaintiff on State Bank of India, Narsapur. The interest was calculated at 12 1/2% per annum. The plaintiff got issued a rejoinder notice dated 2.11.1984 returning the Bank draft for Rs.3,798/- with false allegations. The 1st defendant got issued a reply for the rejoinder notice dated 22.11.1984 informing the correct facts and further informed that the amount was deposited in Bank of India, Narsapur under T.D.R.No.4/17 dated 20.11.84 for 91 days in the name of his advocate for the main benefit of the plaintiff and called upon the plaintiff to accept the amount and on informing the same, the T.D.R. will be transferred in the name of the plaintiff or cash will be paid on encashment. The conduct of the 1st defendant although shows that he was deligent at all material points of time and hence agreement of sale was cancelled as the plaintiff committed breach of contract. As the T.D.R. dated 20.11.1984 came to an end, the amount was again redeposited in Bank of India for 3 years under deposit certificate No.DBD 3/9, dated 26.3.1985, and on maturity, the amount comes to Rs.5,178-85 ps. The amount is deposited for the benefit of the plaintiff and the plaintiff is at liberty to withdraw the same after withdrawing the suit. The damages claimed by the plaintiff is not tenable and unsustainable. The amount is deposited for the benefit of the plaintiff and the plaintiff is at liberty to withdraw the same after withdrawing the suit. The damages claimed by the plaintiff is not tenable and unsustainable. The estimate of damages is exorbitant, excessive and also a myth. The plaintiff is not entitled to claim any damages as he himself committed breach of contract. The plaintiff is also not entitled to claim the alleged value of the mud alleged to have carted in the plaint schedule property as he did not cart the mud or earth at any point of time. As the 1st defendant had already offered the earnest amount and kept the same in the Bank for the benefit of the plaintiff, he is at liberty to receive the same. Therefore, the suit may be dismissed with compensatory costs. 9. The second defendant filed the written statement with the following averments:- It is pleaded that there is no cause of action against the second defendant to file the suit. The suit is not maintainable against the second defendant and the same is liable to be dismissed in limine. It is also pleaded that this defendant did not execute any agreement of sale in favour of plaintiff, much less, the suit agreement. This defendant is major and divided son of the 1st defendant. Even according to the age mentioned in the plaint, this defendant was major at the time of execution of agreement of sale. Therefore, the agreement of sale as far as this defendant is concerned is not valid and binding on him. This defendant did not authorize the 1st defendant to sell his share in the plaint schedule property. This defendant did not receive any amount as mentioned in the plaint. The plaintiff is not entitled to claim any reliefs against this defendant as he was not deligent while attaining the agreement of sale or thereafter. The sale is not for discharging the family antecedent debts, therefore, it is not binding on this defendant, and therefore, the suit may be dismissed with compensatory costs. 10. On the strength of these pleadings, before the Court of first instance, the following issues were settled:- 1. Whether the agreement of sale, dated 21.11.1983, is valid and binding on the 2nd defendant? 2. Whether the plaintiff is entitled for the specific performance of the agreement of sale, dated 21.11.1983? 3. 10. On the strength of these pleadings, before the Court of first instance, the following issues were settled:- 1. Whether the agreement of sale, dated 21.11.1983, is valid and binding on the 2nd defendant? 2. Whether the plaintiff is entitled for the specific performance of the agreement of sale, dated 21.11.1983? 3. Whether the plaintiff is entitled for the damages claimed in the suit? 4. To what relief? 11. The plaintiff examined himself as PW.1 and further examined PW.2. Exs.A1 to A6 were marked. The 1st defendant examined himself as DW.1 and also DWs.2 to 4 were examined. The 2nd defendant examined himself as DW.3. Exs.B1 to B7 were marked. The Court of first instance recorded reasons in detail and came to the conclusion that Ex.A1-agreement of sale is valid and binding on the second defendant also and that the plaintiff is entitled for specific performance of agreement of sale. The Court of first instance, while answering issue no.3, also recorded that inasmuch as the principal relief is being granted, alternative relief need not be granted. But, however, while answering issue no.4, decreed the suit with costs against the 1st defendant only directing him to execute and register the sale deed. Aggrieved by the same, the matter was carried by way of appeal A.S.No.60 of 1992 on the file of Senior Civil Judge, Narsapur, and the appellate Court at para 9 framed the following point for consideration: " Whether the decree and judgment of the trial Court are not sustainable ?" 12. The appellate Court proceeded to discuss with the point for consideration commencing from paras 11 to 18, and ultimately, allowed the appeal partly modifying the decree of specific performance to a decree of alternative relief of refund of money with interest. Aggrieved by the same, the plaintiff preferred the present Second Appeal. 13. Several of the facts appear to be not in serious controversy. The execution of the agreement of sale is not in serious controversy between the parties. The plaintiff had shown the age of the second defendant as 20 years in the long cause title of the plaint. The second defendant made an attempt to impress the Court that the plaintiff also in a way admitted his case that he was not a minor by the date of Ex.A1. The plaintiff had shown the age of the second defendant as 20 years in the long cause title of the plaint. The second defendant made an attempt to impress the Court that the plaintiff also in a way admitted his case that he was not a minor by the date of Ex.A1. In the light of the same, the question whether the second defendant was a major by the date of Ex.A1 or he was a minor has to be seen. Certain findings had been recorded in this regard. The evidence of DW.3, apart from the evidence of DW.1, is available on record and Ex.B4, the date of Birth certificate of 2nd defendant issued by the Head Master of Lenin Municipality High School, Narsapur, dated 05.05.1992, Ex.B5-Photostat copy of the relevant page in 'C' Register of Lenin High School, Narsapur, relating to second defendant, Ex.B6-photostat copy of the relevant page in T.C.register of Lenin High School, Narsapur relating to second defendant and Ex.B7-photostat copy of the relevant page in S.S.C. register relating to 2nd defendant are also available on record. 14. The oral and documentary evidence available on record, if carefully examined, the findings recorded by the Court of first instance in relation to the execution of Ex.A1, which is not in serious controversy at all, cannot be found fault. The question whether D.2 was a major or a minor may assume some importance relating to the binding nature of Ex.A1 on the second defendant. Certain pleas had been taken in this regard and evidence of D.Ws.1,2,3 and 4 had been let in. May be, if D.2 to be treated as a minor at the relevant point of time, in the event of D1 being the Kartha or Manager of the joint family, the binding nature or otherwise of Ex.A1 on D.2 may have to be considered in the back drop of the said situation. However, the appellate Court recorded reasons in detail and came to the conclusion that instead of granting the principal relief of specific performance, the alternative relief of refund to be granted. The relief of specific performance is a discretionary relief. No doubt, the discretion to be exercised judiciously. However, the appellate Court recorded reasons in detail and came to the conclusion that instead of granting the principal relief of specific performance, the alternative relief of refund to be granted. The relief of specific performance is a discretionary relief. No doubt, the discretion to be exercised judiciously. Section 12 of the Specific Relief Act, 1963 dealing with specific performance of part of contract reads as hereunder: "Specific performance of part of contract: (1) Except as otherwise hereinafter provided in this section the Court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance, of so much of the contract as can be performed, and award compensation in money for the deficiency. (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either- (a) forms a considerable part of the whole, though admitting of compensation in money; or (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the Court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party; (i) in the case falling under Clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Clause (b) (pays or has paid) the consideration for the whole of the contract with out any abatement and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all rights to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. (4) When a part of a contract which, taken by itself can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. Explanation: For purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance." 15. The decisions in A.L.Parthasarathy Mudaliyar vs. Venkata Kondaiah Chettiar1 and in Subramani vs. Kanappa Reddiar2 also may be glanced at in this context. It is needless to say that certain essentials and conditions may have to be satisfied if specific performance to be enforced in relation to a part of contract. Apart from this aspect of the matter, the Second Appeal was dismissed for default as against the 2nd respondent. Hence, in the light of the findings recorded in detail by the appellate Court, since always the relief of specific performance need not be granted merely because it is a lawful to do so, and the Courts may exercise the discretion, in the light of the fact that only one of the sharers executed Ex.A1, the discretion was exercised by the appellate Court while ordering refund of the amount instead of granting specific performance in relation to the share of the father atleast. It is true that the father, the 1st defendant, had not put in any serious contest relating to Ex.A1. It is no doubt true that the points for consideration framed by the appellate Court are not happily worded, but, however, in the light of the views expressed by this Court in Jonnalagadda Ramreddy and others v. Nookala Narasimha Reddy3 and in Sughra Bee v. Kareez Fatima Qureshi4, this Court as specified supra, inasmuch as all factual aspects had been considered by the appellate Court, this question also need not detain this Court further, any longer. Hence, in the light of the findings recorded in detail by the appellate Court, inasmuch as taking into consideration the peculiar facts of the case, the alternative relief of refund had been granted, this Court is not inclined to disturb the said findings in this Second Appeal. 15. Hence, in the light of the findings recorded in detail by the appellate Court, inasmuch as taking into consideration the peculiar facts of the case, the alternative relief of refund had been granted, this Court is not inclined to disturb the said findings in this Second Appeal. 15. Accordingly, the Second Appeal being devoid of merit the same shall stand dismissed. But, however, inasmuch as the execution of Ex.A1 is not in serious controversy, the parties to hear their own costs.