JUDGMENT
S. Sankarasubban, J.
1. A.S. No. 414 of 1996 is filed against the judgment and decree in O.S. No. 801 of 1993 of the Principal Sub Court, Kottayam. A.S. No. 723 of 1996 is filed against the judgment and decree in O.S. No. 253 of 1994 of the same Court. Both O.S. Nos. 801 of 1993 and 253 of 1994 were heard together and a common judgment was pronounced. A.S.No.414ofl996isfiledbythedefendantsin O.S.No.801 of 1993 while A.S.No.723 of 1996 is filed by the plaintiff in O.S.No.253 of 1994. First, we shall deal with the facts in A.S. No. 414 of 1996.
2. In O.S. No. 801 of 1993, the plaintiff is K. A.Mohammed Nizzar. Defendants are Abdul Hameed and Fathima Kunju. The plaintiff in the suit is the sister’s son of the first defendant. The second defendant is the wife of the first defendant. The suit was filed by the plaintiff for specific performance of an agreement, which was produced as Ext..B1 of the same date. According to the plaintiff in O.S. No. 801 of 1993, the plaintiff entered into an agreement with the defendants for the purchase of the plaint schedule property for Rs. 4.5 lakhs. The agreement was reduced into writing. On the date of the agreement, the plaintiff paid to the defendants an amount of Rs. 2 lakhs in advance. The defendants undertook to execute the sale deed and put the plaintiff in possession of the property on or before 30.6.1993 after clearing all encumbrances.
3. On 18.6.1993 the plaintiff paid to the defendants Rs. 30,000/- and got the period of agreement extended to 5.8.1993. On 23.7.1993, the plaintiff paid to the defendants Rs. 70,000/-. the payments and the extension of period of agreement have been endorsed on the agreement. A portion of the amount received by the defendants towards sale consideration was utilised by them to discharge the liabilities in respect of the property. The release deed obtained from the creditor Bank and other documents were handed over to the plaintiff by the defendants. The plaintiff informed the defendants about his readiness and willingness to pay the balance sale consideration so that the transaction might be completed. In fact, a draft sale deed was prepared. Meanwhile, the first defendant met with an accident and was admitted as an inpatient in a hospital. The plaintiff was prepared to take the first defendant to the office of the Sub Registrar. But the defendants evaded execution of the sale deed. On 5.8.1993, the last day for completing the transaction, the plaintiff went to the office of the Sub Registrar, but the defendants did not turn up. On 7.8.1993, the plaintiff caused a lawyer’s notice to be issued to the defendants requesting to come to the office of the Sub Registrar on 18.8.1993. But they failed to comply with the request. Hence, the suit was filed The Court below found that the plaintiff is not entitled to the decree for specific performance. But the plaintiff was allowed to recover from the defendants the amount of Rs. 3 lakhs paid by him with interest at 18% per annum from the date of payment.
4. A joint written statement was filed by defendants 1 and 2. According to the defendants, the plaintiffs mother Fathima Kunju is the first defendant’s sister. She has 8 cents of land in Changanacherry Village. At her request, the plaintiff had spent some amounts to marry his daughters. When the plaintiff wanted his mother to return the money, she was compelled to dispose of her property. The first defendant agreed to purchase the property for Rs.l lakh. An agreement was executed evidencing the transaction. The agreement to sell that property and the agreement in respect of the property involved in this case were entered into as a result of the negotiations of the plaintiff and her mother had with the defendants and the other members of the family. Though there were two agreements, there was one transaction. The first defendant was liable to pay an amount of Rs. 1 lakh to the plaintiffs mother for her 8 cents of land, which was agreed to be adjusted towards the sale consideration payable by the plaintiff in this case to the defendants. Under the agreement, the defendants are liable to vacate their house on the plaint schedule property only after they are put in possession of the 8 cents belonging to the plaintiffs mother.
5. The plaintiff in O.S. No. 253 of 1994 further submitted that the plaintiffs sister did not have valid title. According to the first defendant, the properties belonged to his father. During the life time of the father, the father agreed to give the properties to the children. Accordingly, the mother of the plaintiff in O.S. No. 801 of 1993 was allotted 8 cents of property. But before the document could be executed, the father passed away. It was in such circumstance that the agreement was entered into. The plaintiff in the suit further submitted that because the title to the property was not complete, the agreement was not complied with. But the suit, O.S.No.253 of 1994 was filed for specific performance of Ext. B1 agreement and execution of the sale deed with regard to the property.
6. Thus, we find that in O.S.No.801 of 1993 the prayer was for specific performance of Ext.A1 agreement or in the absence of that, payment of the amount paid by the plaintiff as advance to the first defendant. In the other case, viz., O.S.No.253 of 1994, the suit was filed for specific performance of Ext. B1 agreement of the same date. The parties went to trial and evidence was adduced. After evidence was over, the Court below considered the question. Both the suits were decreed. It is against that these appeals have been filed.
7. From the pleadings, it has now become clear, that the contention of the defendants in O.S. No. 801 of 1993 was that the plaintiff was not ready and willing to execute his part of the agreement. But from the evidence adduced, it is now clear that there was no default on the part of the plaintiff. The default was on the part of the defendants. Hence, according to us, the Court below rightly held that the suit filed for enforcement of Ext.A1 agreement is legal and that the plaintiff in O.S. No. 801 of 1993 is entitled to decree for execution of the sale deed in his favour in respect of the plaint schedule property within one month on the plaintiffs depositing in Court within three weeks, the balance sale consideration of Rs. 1.5 lakhs. With regard to O.S.No.253 of 1994, it was decreed and the defendants are directed to execute the sale deed in favour of the plaintiff.
8. As already stated, there is clear proof so far as O.S.No.801 of 1993 is concerned that the plaintiff was ready and willing. In the above view of the matter, we are of the view that the decree in O.S.No.801 is correct. In the other suit, O.S. No. 253 of 1994, the plaintiff wanted a decree for specific performance and that was granted by the Court below. But the plaintiff himself has filed the appeal. The plaintiffs case is that the title of the vendor under Ext. Bl is weak and hence, the enforcement of the agreement was not possible.
9. Learnedcounsel for the appellant inA.S.No.723 of 1996 (plaintiff inO.S.No.253 of 1994) submitted that the Court should not have granted the decree for specific performance. According to him, the defendant in that case has no title to the property. Learned counsel for the appellant cited before us some decisions to show that the appellant cannot be mulcted with the liability to get a sale deed. In M.K. Marattukulam v. Hemchand (1988 (2) KLT 166), it was said by this Court as follows:
“Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement there in no necessity to determine the question of the vendor’s title and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. Whether the vendors had full title to the property agreed to be conveyed to the plaintiff is not a question properly arising for decision in the present suit for specific performance. If their title is defeasible at the instance of persons not parties to the suit, the purchaser will get only such title as the vendors themselves had in the property. It is not open to the vendors to set up title of third parties in defence to the suit for specific performance”.
In another case, M.A.H. Khan v. A.M. Khadri (AIR 1972 A.P. 178), it was held that the vendor cannot refuse to give specific performance mainly on the ground that the title is defective. It is true that on the basis of the decision, nothing is said about the purchaser when there is defective title. But according to us, the appellant cannot take advantage of the defect now, because he has specifically wanted a decree in his favour. The contention raised by him has been considered by the Court below and granted a decree for specific performance. Having obtained specific performance, according to us, it cannot now turn round and say that he does not want a decree. The appellant has not filed a petition withdrawing the suit. We are of the view that the, Court below was correct in decreeing the suit for specific performance.
In the above view of the matter, we are at a loss to know how the appeal is maintainable at the hands of the plaintiff when the suit was decreed. Appeals are dismissed.