A court shall not direct specific performance of a contract for sale of immovable property if the defendant has only a share in the property and the other co-owners are not parties to the contract.

BARMAN, AG. C. J.

( 1 ) THIS appeal filed by the defendant arises out of a suit filed by the plaintiff-purchaser for specific performance of a contract for sale of a suit house in berhampur (Ganjam) town under an agreement by which the defendant agreed to sell the suit house to the plaintiff for consideration on the terms and conditions as mentioned in the said agreement. The plaintiff-purchaser's suit for specific performance was decreed in her favour. Hence this appeal by the defendant-vendor. The facts and circumstances in which the parties came to be involved in the litigation over the suit house are as hereinafter stated.

( 2 ) THE plaintiff Srimati Kamaja Devi and the wife of the defendant, Khali Panigrahi are stated to be intimate friends. It is said that the plaintiff approached the defendant a contractor, for construction of a house for the plaintiff and members of her family; that the defendant purchased Ac. 0. 05 cents of land in ward No. 24 of Berhampur Municipality being house No. 392 adjacent to Komapalli Crossing in court area and constructed a pucca house on the said site. After construction the defendant put the plaintiff in possession of the suit house in January 1955. The plaintiff and the members of her family are said to have been residing in the said house since then. It is said that the plaintiff's family were staying in the house as defendant's tenants; the defendant also employed the plaintiff's husband in writing accounts of the defendant's contract business.

( 3 ) ON December 6, 1960 there was an agreement between the plaintiff and the defendant under which the defendant agreed to sell the suit house to the plaintiff for a consideration of Rs. 7000. The plaintiff's case is that on the same date she paid in cash a sum of Rupees 3000 towards the purchase money. The sequence in which the parties were to perform their respective part of the contract for sale of the suit house was this. The defendant-vendor was to execute and register a sale deed within two months from the date of the agreement, that is to say within february 6, 1961. After execution by the defendant-vendor of the sale deed, the plaintiff purchaser was to clear the mortgage loan of Rs. 1500 with interest due to urban Bank Ltd. Thereafter, the plaintiff purchaser was to pay the balance consideration money by instalments (Dafa Dafa ). There were default clauses in the agreement, namely, that if the defendant-vendor failed to execute the sale deed within two months, that is to say, within February 6, 1961, the plaintiff-purchaser would be entitled to get Rs. 300 as compensation and would be entitled to enforce execution of the contract for sale of the suit house. On the other hand, it was also provided that if the plaintiff-purchaser was unable or unwilling to purchase the suit house in spite of the defendant-vendor's willingness to sell as agreed, the defendant-vendor could compel the plaintiff-purchaser to purchase the suit house on the aforesaid terms and also to pay Rs. 300 as compensation to the defendant vendor.

( 4 ) ADMITTEDLY, the sale was not completed within two months in terms of the contract. On March 8, 1961 the plaintiff-purchaser is alleged to have paid a sum of rs. 2500 as appears from the receipt Ext. 2 granted by the defendant in favour of the plaintiff; the receipt purports to show the payment of the balance amount which however, under the agreement was to be paid in instalments (Dafa dafa ). On January 3, 1962 the plaintiff without prior notice, filed the suit against the defendant for specific performance of the contract for sale.

( 5 ) THE defence of the defendant-vendor to the plaintiff's suit for specific performance was in substance this: The suit house was joint family property of the defendant and his five sons of whom two were minors; thus, the defendant had only l/6th share in the suit house; the defendant therefore could not validly transfer the suit property because it was joint family property in which h