The court interpreted and applied S.12 and S.52 of the Specific Relief Act to allow specific performance of the contract to the extent of conveying the rights of the first defendant, excluding the life estate of the second defendant.

dismissed. But he was given a decree for refund of the advance amount with interest. First defendant is the owner of the property, who entered into the agreement with the appellant not only to sell his right, but the life interest of his mother, the second defendant, also. First defendant died after decree and appeal. Respondents 3 to 6 are his legal representatives. Among them, third respondent is the widow and others the children. Fourth respondent, after he attained majority, filed a memorandum of cross objection challenging the decree for refund of the advance amount and contending that the agreement itself is not valid as the first defendant had no alienable right since it is a joint family property.

2. Fourth respondent was impleaded in the appeal after the death of the first respondent only as his legal representative. Under Order XXII Rule 4(2), he can make his defence only appropriate to his character as legal representative of the first respondent He cannot set up new or individual rights not set up by or not available to the first respondent or in consistent with the defence taken up by the first respondent. It is open to the court to allow a legal representative to be impleaded in his own personal capacity, in which case he could set up his own independent title. That is not the case here. The agreement was executed and the suit was contested by the first defendant as if the suit property belonged exclusively to him on partition. Now the fourth respondent says that the first respondent had no such rights and it is joint family property. In this suit, he cannot be heard to say so. For that, he must seek independent reliefs, if so advised.

3. Ext.A1 is the agreement dated 10-3-1981. Second defendant was not a party to it. But first defendant agreed to see that she is also joined as one of the executants. On that agreement, sale consideration was fixed at Rs. 45,000/- and Rs. 20.001/- was received as advance. Time stipulated was six months. The suit was filed on the allegation that though the appellant was ready and willing to perform his part of the contract and issued notice on 27-8-1981, the defendants were not prepared. Contention is that second defendant, who was not bound by Ext. Al, was unwilling to join the sale deed and first defendant offered to sell his rights, but plaintiff backed out.

4. Trial court found that plaintiff was always ready and willing to perform his part of the contract, but the breach was committed by the first defendant. Specific performance was refused for the sole reason that performance of a part alone of the contract is not permissible, as the case will not come under any of the exceptions in S.12 of the Specific Relief Act. After hearing the case and considering the pleadings and evidence carefully, I do not find any reason to differ from the conclusions of the trial court that plaintiff was always ready and willing and break was committed by the first defendant alone. No reply was sent to Ext. B2 notice issued on 27-8-1981 requiring specific performance. Receipt of notice was delayed upto 5-9-1981 in order to gain time to plead that time is expiring. The contention that he met the plaintiff at his residence and informed about the unwillingness of the second defendant and his preparedness to sell his right is far from convincing. He has also a case that plaintiff was asked to come for measurement on 8-9-1981 and for execution of the sale deed on 9-9-1981, but he did not turn up though the first defendant was present.

5. DW 2 is the scribe of Ext A1 and DW 3 is the person alleged to have been engaged by the first defendant for measuring the property. Their evidence that first defendant appeared for measurement and execution of the sale deed cannot be swallowed easily, especially in the absence of any supporting document. On the other hand, the case of the plaintiff and his evidence that he appeared on 8-9-1981 and 9-9-1981 as desired in Ext. B2 notice are supported by Exts. A4