M.Y. Eqbal, J.

1. This second appeal filed by the defendants/appellants is directed against the judgment and decree dated 19.12.1988 passed by the 1st Additional District Judge, Giridih in Title Appeal No. 13/1977 whereby he has dismissed the appeal and affirmed the judgment and decree dated 12.7.1977 passed by Munsif Giridih in Title Suit No. 17/76.

2. The appeal was admitted for hearing on the following substantial question of law :

"Whether in absence of the heirs of Sheonath Mukherjee, one of the parties in whose favour the appellant-defendants had agreed to reconvey the property, the suit could have been decreed for the whole of the property.

3. The facts of the case lie in a narrow campass.

4. Two persons namely, Shambhunath Mukherjee and Sheonath Mukherjee who were the owners of the suit property sold it to the defendants for a consideration of Rs. 1,000/- and Rs. 3,500/- through two separate sale deeds dated 22.6.1973 and put them in possession of the same. On the same day defendants agreed to their vendors and entered into a deed of reconveyance of the suit property on payment of consideration money within a period of four years from the date of the sale. The defendants executed two separate deeds of agreement for sale on the same day in favour of their venders. Plaintiffs case is that the vendors have always been tendering the said amount to the defendants right from the month of December 1974 but they have always been putting of the matter on one pretext or other. Ultimately, the venders sent a notice dated 7.1.1975 requesting them to accept the said amount of Rs. 4500/- from the venders and to reconvey the Suitland by executing a registered sale deed.

5. Further, case of the plaintiff is that in the meantime, Sheonath Mukherjee died bachelor in a state of jointness with his brother who succeeded him by right of survivorship. It is stated that Shambhunath Mukherjee and his sons thereafter transferred his right acquired under the aforesaid agreements for sale to the plaintiff by registered deed of transfer dated 2.5.1975 for consideration of Rs. 1,000/-and the plaintiff became entitled to enforce the agreement for sale and also entitled to obtain a decree of reconveyance of the suit land by paying the defendants the full consideration money. The plaintiff then sent a registered notice to the defendant showing his willingness and readiness regarding the payment of entire consideration money for the reconveyance of the contract. The defendants did not accept notice and ultimately the aforesaid suit was filed against the defendant for decree of specific performance of contract.

6. The defendants, who are appellants here, filed joint written statement and contested the suit. Their case, in brief, is that the suit is not maintainable and it is barred by limitation. Their further case is that the plaintiff has no locus standi to maintain the suit as he never entered into any agreement with the defendants. The suit is also barred by non joinder and mis-joinder of parties as Sheonath Mukherjee died leaving behind his wife and three daughters, who are the necessary parties. It is stated that Shambhunath Mukherjee is also a necessary party. Various other defences have been taken in the written statement.

7. The trial Court decreed the suit holding that the suit is not bad for non- joinder of necessary party as Sheonath Mukherjee died bachelor and after his death Shambhunath Mukherjee and his sons inherited the property by survivorship. The defendants preferred Title Appeal No. 13/77 and the learned 1st Additional District Judge, Giridih formulated the following points for consideration :

(i) Whether the suit is maintainable?

"(ii) Whether the suit is bad for the non-joinder of the parties?

(iii) Whether a contract to re-sale a property is assignable and transferable and whether the plaintiff is entitled to get the land reconveyed?

(iv) Whether the plaintiff has been willing to pay the consideration money.

8. All these points have b