Agreement of sale post-partition binds only signatories' shares; lacks Karta recital or legal necessity, does not bind non-signatory coparceners' independent shares.

JUDGMENT :

C.V. KARTHIKEYAN, J.

1. The plaintiff in O.S.No.231 of 2008, on the file of the II Additional District Court at Salem aggrieved by that portion of the judgment, wherein, the relief of specific performance was not granted as against the fifth and sixth defendants has filed the present appeal.

2. The suit in O.S. No.231 of 2008 had been filed by the plaintiff/appellant herein, V.Thiagarajan seeking a judgment and decree of specific performance against the 1-6 defendants by directing them to execute a sale deed after making provisions to discharge the encumbrance of the 7-9 defendants over the suit properties, failing which, for the Court to execute the sale deed on behalf of the 1-6 defendants and for permanent injunction restraining the 1-6 defendants from creating or registering any deed in respect of the suit property with respect to third parties and for costs of the suit.

3. In the plaint, it had been contended that the plaintiff V.Thiagarajan and the first and second defendants, K.Paramasivam, P.Bhuvaneswari and one Rangasamy, son of Kandasamy of Kandarkulamanickam Village had entered into an agreement of sale for the sale of the properties morefully described to the schedule to the plaint at Rs.3,11,000/- per acre. The terms and conditions of the agreement were reduced into writing on 06.09.2006. It was stated that the first and the second defendants and the said Rangasamy received a sum of Rs.1,00,000/- as advance from the representative of the plaintiff, Valliappa Chettiar. The agreement of sale was signed by the said Valliappa Chettiar on behalf of the plaintiff and by the first and second defendants and by the said Rangasamy. Rangasamy was the elder brother of the first defendant. The said property had fallen into the share of the first defendant and the said Rangasamy, under a compromise decree in a suit for partition in O.S.No.805 of 1992. The other properties under the agreement were also purchased by the second defendant. It was also agreed by the parties that the sale deed would be executed along with the legal heirs in favour of the plaintiff after receipt of the balance sale consideration on or before 31.10.2006. The first and the second defendants and the said Rangasamy had also agreed to discharge and clear all loans and encumbrances over the suit properties before executing the sale deed.

4. It was also contended that the first and second defendants and Rangasamy received an additional part sale consideration of Rs.2,50,000/- in cash on 01.11.2006. They also made entries in the agreement of sale on 21.09.2006 and on 01.11.2006. The time for executing the sale deed was extended till 31.01.2007. It was contended that efforts were taken by them to clear the existing debts. The plaintiff claimed that he was always ready and willing to perform his part of the agreement.

5. Thereafter, the first and second defendants and Rangasamy received a further advance of Rs.50,000/- on 06.12.2006 and a further sum of Rs.10,00,000/- by demand draft on 08.12.2006 towards the part repayment of the existing loan and to settle Indian Overseas Bank which had initiated steps under the SARFAESI Act to recover dues from the fifth defendant. Necessary endorsements were a