Specific performance of a contract involving joint family properties requires consent from all co-sharers; failure to implead necessary parties renders the agreement unenforceable.

JUDGMENT :

The unsuccessful plaintiff before both the Courts below has filed the present second appeal. The plaintiff filed the suit for specific performance of contract dated 08.04.2002 (Ex.A1) or in the alternative to refund the advance amount paid by him to the defendants 1 to 3 together with interest.

2. For the sake of convenience, the parties are referred to as per their rank in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.

3. The case of the plaintiff in a nutshell is as follows :

The suit properties belong to the joint family of the defendants 1 to 7. The defendants 1 to 3 agreed to sell the suit properties in favour of the plaintiff for a sale consideration of Rs.1,50,000/-. Accordingly, the sale agreement was entered into between the plaintiff and the defendants 1 to 3 on 08.04.2002 (Ex.A1) and a sum of Rs.1,25,000/- was paid towards advance by the plaintiff. The time for payment of the balance sale consideration of Rs.25,000/- was fixed as two years. The plaintiff was always ready and willing to perform his part of the contract and he requested the defendants 1 to 3 to execute the sale deed. Since the defendants 1 to 3 started evading, the plaintiff issued a legal notice dated 27.03.2004 (Ex.A2) to them to execute the sale deed on or before 07.10.2004. However, the defendants 1 to 3 did not send any reply. On the other hand, the defendants 4 and 5 in their reply notice (Ex.A8) have contended that since they have 1/7th share each in the suit properties, the sale agreement executed by the defendants 1 to 3 would not bind them. They have also contended that the suit properties are worth more than Rs.7,00,000/- and that there was no necessity to sell the suit properties in favour of the plaintiff. According to the plaintiff, the above contention of the defendants 4 and 5 are totally false. Hence the suit.

4. The defendants 1 to 3, 5 and 6 remained absent and were set ex parte. The suit was resisted by the fourth defendant on the following grounds:

i. The defendants 1 to 3 have not executed any sale agreement in favour of the plaintiff.

ii. The suit properties is a joint family properties and all the defendants have equal shares. Hence, the defendants 1 to 3 do not have any right to enter into a sale agreement with the plaintiff.

iii. The first defendant was not a Manager / Karta of the joint family consisting of the defendants 1 to 7.

iv. In fact there was no necessity for alienating the suit properties for a sum of Rs.1,50,000/- which is worth Rs.7,00,000/-.

5. An Advocate was appointed as court guardian for the seventh defendant as he happened to be a minor. In his written statement, he had reiterated the contentions of the fourth defendant.

6. On the basis of the above pleadings, the trial Court framed the following issues:

"i. Whether the sale agreement dated 08.04.2002 is executed by the defendants 1 to 3 ?

ii. Whether the defendants can be directed to execute the sale deed as per the sale agreement dated 08.04.2002 ?

iii. Whether the sale agreement dated 08.04.2002 is not binding on the defendants 4 to 7?

iv. Whether the suit is barred by limitation ?

v. Whether the plaintiff is entitled to a decree for specific performance for refund of Rs.1,50,000/- with interest ?

vi. To what relief, the plaintiff is entitled?

7. In the trial Court, the plaintiff examined herself and one another witness and marked Ex.A1 to Ex.A8. The fourth defendant examined himself. However, no documentary evidence was adduced on the side of the fourth defendant.

8. The learned trial court judge, after analysing the oral and documentary evidence on record, vide his decree and judgment dated 04.04.2005, dismissed the suit filed by the plaintiff with regard to the specific performance of contract. However, the trial court directed the defendants 1 to 3 to refund a sum of Rs.1,55,792/- together with interest at the rate of 6% per annum from the date of plaint till the date of realization. The trial cour