The court established that specific performance can be enforced despite the necessity for a partition of jointly held property shares.

1. This appeal is directed against impugned judgment and decree dated 18/12/2014 by which, the plaintiffs suit has only been partly decreed in the manner that though prayer for grant of specific performance of contract is rejected, advance amount paid by the plaintiff has been directed to be refunded.

2. The appellant / plaintiff filed a suit seeking decree of specific performance of contract against respondent / defendant on the pleadings inter alia that on 09/05/2008, the defendants - Dilip Patel and Kanta Ben, mother of Dilip Patel had entered into an agreement to sell the property in dispute in favour of the plaintiff. It was further pleaded that the parties had agreed for sale, for a total consideration of Rs.43,60,000/- out of which, Rs.10 lakhs was paid as advance by the plaintiff to the defendants. As per the terms and conditions stipulated in the agreement, the defendant was required to remove the structure standing on the land, get all the revenue papers prepared and handed over to the plaintiff, whereafter, the plaintiff was required to get the sale deed executed on or before 30/09/2008 by paying the balance of the sale consideration. According to the plaintiff, he was ready and willing to perform his part of contract by paying the balance amount but the defendants did not perform their part of contract. Thereafter, a notice was also given but the defendants did not execute the sale deed. Therefore, the plaintiff had to file suit.

3. The defendants filed a written statement and took the plea that the prayer was joint one, owned by all the defendants but the execution of agreement was not disputed. According to the defendants, the plaintiff was not ready and willing to perform his part of contract due to which, the sale deed could not be executed within time stipulated. It was further pleaded that one of the parties to the agreement Smt. Kanta Ben Patel w/o Parvat Bhai Patel also died.

4. On the basis of the pleadings - of the parties, learned Trial Court framed following issues - (Vernacular Matter Is Omitted Ed)4. 1 Even though, learned Trial Court found that the plaintiff was ready and willing to perform his part of contract, suit was filed within limitation and also that the plaintiff had paid advance, did not grant decree of specific performance on the finding that the property in dispute was purchased by Parvat Bhai Patel and after his death, all his heirs including his widow, sons and daughters became joint sharers and as there was no partition, no decree could be granted. Learned Trial Court also held that the suit was not maintainable against the defendants 2 to 5.

5. Learned senior counsel for the appellant made pointed submission that insofar as finding that the suit was not maintainable against defendant Nos.2 to 5 is concerned, learned Trial Court misdirected itself in taking into consideration that the impleadment of defendants 2 to 5 was in the circumstances that before filing of the suit, Kanta Ben died and she was survived by defendant No.1 - Dilip Patel and four sisters i.e. defendants 2 to 5. Therefore, their impleadment was as legal representative of share of Kanta Ben. Next submission is that even if the property was a joint family property, held jointly by Kanta Ben and sons and daughters of deceased Parvat Bhai Patel, the plaintiffs were entitled to decree of specific performance to the extent of undivided share of Dilip Patel and Kanta Ben. In support of this submission, reliance is placed on Kammana Sambamurthy (deceased by L.Rs.) v. Kalipatnapu Atchutamma (deceased by L.R.) and ors., 2010 AIR SCW 6219.

6. There is no represen