JUDGEMENT :- This is a defendants appeal arising out of a suit for specific performance. The relief of specific performance was not granted by the Courts below but the suit was decreed for recovery of Rs. 8,000/-from the defendants Nos. 1 and 2 with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. Out of the above amount a sum of Rs. 5,000/- was awarded by way of damages for breach of contract and a sum of Rs. 3,000/- related to the refund of the earnest money.

2. The short facts of the case are : that the house in dispute in respect of which an agreement for sale dated 3-4-1962 had been arrived at belonged to defendant No. 1 and the defendant No. 2 and his brothers. It is not disputed that a moiety share belonged to defendant No. 1 on the one hand and the remaining half belonged on the other hand, to defendant No. 2 and his three brothers. The agreement was to the effect that defendants Nos. 1 and 2 would sell the said house to the plaintiff for Rs. 10,040/-. A sum of Rs. 3,000/- was paid as earnest money and the balance was agreed to be paid at the time of execution of the sale deed. It was stipulated that the sale deed would be executed within three months from the date of agreement. In Jan. 1963 extension of time was granted at the request of defendants Nos. 1 and 2 and on their request a further sum of Rs. 2,600/- was advanced to them on 17-1-1963. It was alleged by the plaintiff that although he was ready and willing to perform his part of the agreement for the execution of the sale deed, yet the defendants postponed it on one pretext or the other and in breach of the terms of the agreement they executed a sale deed in favour of defendant No. 3, Ilam Chand for a sum of Rs. 15,000/- on 21-1-1963.

3. The defence of the defendants Nos. 1 and 2 was that plaintiff knew full-well that defendant No. 2 had three brothers and a mother, all of whom were co-sharers of the said house and that the plaintiff had taken upon himself the responsibility of persuading them also to agree to join the execution of the sale deed in his favour. It was contended that the agreement was subject to the condition that the plaintiff would make those co-sharers agree to execute the sale deed in his favour which he had failed to do. It was further pleaded that the defendants formed a joint Hindu family along with the brothers of defendant No. 2 and that the agreement was not for the benefit of the family and was not capable of being enforced in a Court of law.

4. The Courts below held that the defendant No. 3 was a bona fide purchaser without notice and consequently the sale deed in his favour was not illegal. Hence, no decree was passed against him. A decree was, however, passed against defendants Nos. 1 and 2 (the present appellants) for recovery of Rs. 8,000/- with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. The decree was confirmed by the lower appellate Court.

5. Three points were urged before me on behalf of the appellants. The first and the most formidable contention of the appellants was that the terms of the agreement dated 3-4-1962 (Ext. 26) were reduced to writing, that it nowhere recited that Dhara Singh, defendant No. 2 was executing the agreement in his capacity as a Karta of the joint Hindu family, nor did it stipulate that defendant No. 2 took upon himself the responsibility of making his other brothers join in the execution of the sale deed and consequently the Courts below were in error in spelling out a new case and permitting evidence to be led to the effect that either Dhara Singh had promised to execute a sale deed in his capacity as the Karta of the joint family or that he had undertaken to persuade his brothers also to join in execution of the sale deed. It was further argued that since these conditions were not included in the terms of the agreement, the plaintiff had no right to insist on their fulfilment and to refuse to have the sale deed executed in the event of the

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