A vendor cannot plead want of title or defect of title after willingly entering into a contract.

Mahesh Grover, J. - This judgment will dispose of Regular Second Appeals bearing Nos. 447 and 1706 of 1987 as they revolve around the same controversy. The facts are being extracted from R.S.A. No. 447 of 1987.

2. This Regular Second Appeal No. 447 of 1987 is directed against the judgment of the lower appellate Court dated 15.12.1986 vide which the findings of the learned trial Court in its judgment dated 11.5.1985 were reversed.

3. Briefly stated the facts of the case are that the plaintiff-appellant Hukam Chand filed a suit against the present respondent for possession of the suit property by way of a suit for specific performance. The respondent is alleged to have executed an agreement to sell dated 7.2.1980 for sale of agricultural land measuring 71 Kanals 4 Marlas. The sale deed was to be executed on 1.6.1980, which time was extended upto 25.6.1980. Rs. 50,000/- were paid by way of earnest money. Three sale deeds were executed by the respondent in pursuance to this agreement to sell. The first sale deed was executed on 4.6.1980 pertaining to 26 Kanals 8 Marlas of land; the second on 10.6.1980 qua 11 kanals 8 marlas and third on 26.6.1980 qua 26 kanals 8 marlas. Out of 71 kanals 4 marlas, the land measuring 64 kanals 4 marlas was sold to the appellant and only 7 kanals of land was left. The appellant had sought possession of this 7 kanals of land by way of the present suit.

4. The suit was contested by the respondent who set up the plea that the agreement could not be enforced as the property in question was a coparcenary property and the agreement was not executed voluntarily. The receipt of earnest money was also denied.

5. On the pleadings of the parties, the following issues were framed :

1. Whether defendant No. 1 had executed agreement of sale dated 7.2.1980 and had received Rs. 50,000/- as earnest money ? OPP

2. Whether plaintiff had been ready and willing to perform his part and is still ready and willing to perform ? OPP

3. If specific performance is not granted whether plaintiff is entitled to refund the earnest money and damages, if so to what extent ? OPP

4. Whether property is suit in co-parcenary property. If so to what effect ? OPD

5. If issue No. 1 is proved whether the agreement in question is the result of fraud, undue influence or misrepresentation, if any ? OPD

6. Relief.

6. The trial Court decreed the suit of the appellant. An appeal preferred by the respondent was accepted and the judgment of the learned trial Court dated 11.5.1985 was reversed. It was held by the learned lower appellate court that the property was a coparcenary property and, therefore, could not have been sold by the respondent.

7. It has been contended by Mr. K.S. Boparai, learned counsel for the appellant that once the agreement to sell has been established, then it was not open to the respondent to plead that the same could not be executed on the ground that he was not authorised to sell the land or to plead a defect of title in himself. The second contention raised was that the plea that the property could not be alienated on the ground of its being coparcenary in nature could have been raised only by the sons of the respondent who could have been aggrieved by it and in the absence of other co-parceners being a party to the proceedings, such a plea was unavailable to the respondent. The third contention that was raised was that the Courts could not have gone into the matter regarding the coparcenary nature of the property in a suit for specific performance filed by the appellant.

8. The aforesaid contentions of the learned counsel for the appellant were sought to be repelled by the learned counsel for the respondent on the plea that the property was coparcenary property and could not have been alienated. The agreement in question, therefore, was rendered unenforceable and the lower appellate Court had correctly answered the controversy.

9. It may not be out of place to mention here that Regular Second Appeal No. 1706 of