IMPORTANT POINT
A co-sharer in joint property can only transfer their interest, and an agreement to sell is unenforceable if it does not include all necessary parties and if it is contingent upon conditions that have not been met.

JUDGMENT :

Birendra Kumar, J.

1. The original plaintiff/appellant late Bhagwan Kaur had brought the suit for a decree of specific performance of agreement to sale, the referred immovable property in pursuance of agreement to sale between the parties dated 24.07.1979 (Ex.1). In the alternative, prayer was for direction to the respondents to refund the part consideration money of Rs.35,000/-along with damages of Rs.35,000/-. Learned trial judge has granted alternative relief above by the impugned judgment and decree dated 19.01.1995 passed by the learned District Judge No.2, Hanumangarh in Civil Suit No.10/1985 (21/82). The plaintiff/appellant is not satisfied with the decree, hence this appeal.

2. The case and claim of the plaintiff is that the original defendant-Smt. Chandrapati and her three sons including two minors through their guardian-Smt. Chandrapati, had executed the aforesaid agreement to sale Chak No.10, HMH T.P. 149/ 264, Kila No.1 to 25 area 12 and half bigas out of total 25 bighas of land. It is not controverted that the said property was khatedari agricultural land of Prabhu Singh acquired through patta and after death of Prabhu Singh, the defendants had succeeded the said property. The total consideration money of the agreement was Rs.87,500/-. Rs.35,000/- was claimed to be paid in advance to the defendants and the defendants handed over possession of the suit property to the plaintiff. It is further stated that the defendant-vendors had promised to obtain no due certificate in respect of the property subject matter of transfer and to get their name mutated in the revenue records and to obtain permission to sale the property before registration of the sale deed.

3. As per agreement, 15.06.1980 was the date fixed for execution of the sale. In the meantime, the plaintiff was required to pay Rs.18,000/-on or before 01.12.1979 and the rest amount was payable at the time of execution of the sale deed. The parties had agreed to extend the time of agreement if the circumstances so require.

4. On 01.12.1979, the plaintiff claims to have tendered Rs.18,000/-to the defendants but they did not accept the same and started evading execution of the sale deed. Then, Advocate’s notice was sent on 23.12.1979 calling for the defendants to execute the sale deed. On their failure, the suit was filed on 20.09.1982.

5. On 24.08.1984, the suit was dismissed against defendant No.2-Bhanwar Singh, son of late Shri Prabhu Singh as the plaintiff failed to file requisites of notices for Bhanwar Singh, however, by order dated 23.05.1985, Bhanwar Singh was added as party defendant under Order 1 Rule 10 CPC. Bhanwar Singh filed written statement but did not appear in the witness box.

6. Defendants No.1, 3 and 4 jointly filed written statements and all the defendants including defendant-Bhanwar Singh contended that they had never entered into any agreement with the plaintiff. No advance was received nor possession of the suit property was given to the plaintiff. The so called Advocate’s notice was never received by them. Since there was no agreement, there was no question of tender of Rs.18,000/-. The defendants contended that Prabhu Singh had left three daughters as well, and they had joint interest in entire 25 bighas of land, therefore, in their absence no decree can be passed in the suit. They stated that mother had no right to enter into an agreement in respect of property of minors and all the seven heirs of late Prabhu Singh were entitled of 1/7th share in the entire area of 25 bighas. The defendant further stated that on 18.09.1981 a suit for partition was filed by the daughters of late Prabhu Singh against these defendants and the suit was decreed on 20.10.1982 followed by mutation of their name in revenue records.

7. The learned trial judge framed following issues. Issue wise finding of the trial judge is being noticed below:-

(i) Whether there was any agreement between the parties dated 24.07.1979 for sale of 12 bighs and 10 biswas of land o