V.X. Joseph vs T. Pasupathi and Another

The plaintiff is the appellant. The suit is for specific performance of an agreement of sale and alternatively without prejudice to the abovesaid

relief, for a direction to the defendants to refund a sum of Rs.22,000/- paid by the plaintiff to the defendants as advance towards sale

Consideration and also to pay a sum of Rs. 10,000/- to the plaintiff by way of compensation for the loss and damages sustained by the plaintiff.

The first defendant is the father of the minor second defendant. The first defendant only executed an agreement of sale on 14-7-1980. It is the case

of the plaintiff that the first defendant entered into an agreement of sale in respect of house and premises bearing Door No. 282, Suryanarayana

Road, Madras-13 for a sum of Rs. 37,500/-, that he paid a sum of Rs. 5,000/-as advance to the first defendant who agreed to complete the

transaction before the expiry of 60 days from the date of agreement. Subsequent to the agreement of sale, the first defendant wanted the plaintiff to

pay a further advance of Rs. 5,000/- to the first defendant''s wife to meet out certain urgent family necessities on 26-8-1980. The plaintiff also paid

a sum of Rs. 12,000/- further to avert the attachment of the property in a suit filed by the Life Insurance Corporation of India against the first

defendant for realising the debt. Accordingly, the plaintiff has so far paid till date, a sum of Rs 22,000/-. It is admitted that the plaintiff had

purchased already the front portion of the property and that the present agreement of sale is only regarding the rear portion of the suit property.

The plaintiff wanted to purchase the rear portion for putting up an Ice Factory in the said premises after demolishing the existing old building. The

first defendant agreed to sell the property as soon as the plaintiff was able to vacate the tenants in the occupation of the portion which the first

defendant had already sold to the plaintiff. This seems to be an excuse of the first defendant with a view to take advantage of the constant increase

in the price of the real property.

The superstructure of the schedule mentioned properly was constructed out of the amounts advanced by the plaintiff to D. Natarajan, the

brother of the 1st defendant when the said property belonged to him. Subsequently, the said property was allotted to the share of the first

defendant and as such the first defendant became the owner of the superstructure. However, subject to the liability to give credit to the sum of Rs.

4,000/-paid by the plaintiff. I here is also a condition in the agreement of sale that the plaintiff should seek eviction of the tenant. But it was so

entered with a view to enable the plaintiff to bargain with the tenant to vacate the tenant at the least costs. The first defendant was willing to spend

at least Rs. 6,000/- for eviction of the tenant. But the same is not inserted in the agreement of sale; otherwise, the tenant would claim the said entire

amount from the 1st defendant. But the plaintiff had assured the first defendant that since he was a friend of the tenant, he would cause his eviction

at a cheaper rate. That was why in the agreement of sale, it was suited that the plaintiff would cause eviction of the tenant. The tenant also had

agreed with the plaintiff to vacate on payment of Rs. 5,500/-. According to the plaintiff, a sum of Rs. 4,000/-was to be deducted being an advance

transferred by the first defendant''S BROther to the first defendant Rs.5,500/- being the amount reserved to be paid to the tenant; Rs. 22,000/-

already paid to the 1st defendant, leaving only a sum of Rs. 6,000/-, to be paid to the first defendant. But the nisi defendant was not willing to

deduct Rs. 4,01)0, - and Rs. 5.500/-and so, the plaintiff reserved his right to initiate appropriate steps to recover all those amounts. The plaintiff

had sent a draft sale deed, to the first defendant for his approval. But without approving it, the first defendant had returned the same to the plaintiff.

The plaintiff was been always ready and willing to have the sale deed executed. But the first defendant wilfully, with a view to gain unfair

advantage, did not take any action for performing his part of the contract.

The plaintiff learnt that the defendants constitute a Hindu coparcenary family of which the first defendant is the manager and so, the agreement of

sale binds the second defendant also though the second defendant is not a party to the agreement of sale. The specific case of the plaintiff is that

the agreement of sale is made and it is for the benefit of the second defendant also. The first defendant had agreed to refund the money to the

plaintiff within a particular period to enable the latter to pay the said sum for acquisition of another property. But the first defendant did not refund

the same. The plaintiff is put to loss and damages due to the act of the first defendant and therefore, he claims compensation of Rs. 12,000/-. By

way of abundant caution and without prejudice to the right of the plaintiff to specifically enforce the sale agreement, the plaintiff off is also seeking

for a decree for the refund of the sum of Rs.22,000/- paid to the first defendant. Hence, the plaintiff filed the suit for specific performance of the

agreement of sale and in the alternative without prejudice to the said relief, the plaintiff also prays for a decree against the defendant to refund the

sum of Rs. 22,000/- and also for Rs. 10,000/- towards damages.

The defend ants filed a common written statement contending as follows: The plaintiff agreed to complete the sale transaction before the expiry

of 60 days from 14-7-1980. The first defendant sold another piece of land with building previously to the plaintiff on 17-6-78. The second

defendant was not a party to the said sale deed. The property already sold to the plaintiff and the property subject matter of agreement of sale

formed part of a bigger extent of land allotted to the first defendant in a family settlement. It is true that the plaintiff paid Rs. 5,000/- as advance on

the date of agreement of sale. The time of 60 days for completion of the sale was made us essence of the contract. Subsequently, on 26-8-1980,

the plaintiff paid further sum of Rs. 5,000/- to the first defendant and there is an endorsement by the first defendant on the agreement that the sale

should be completed on 12-9-1980. Even at the time, the plaintiff was not in a position to complete the sale. Thereafter, the plaintiff wanted the

property to be free from liability created, in favour of Life Insurance Corporation of India. The Life Insurance Corporation of India had a mortgage

decree over the entire extent of 45 grounds of which the suit property formed only a very small portion. When the plaintiff informed the first

defendant that the suit property should he released from the liability of the Life Insurance Corporation of India the first defendant asked the plaintiff

to pay to the L.I.C. of India the sum of Rs.4,000/- which he had retained from and out of the sale consideration of the property sold on 7-6-1978.

Regarding the balance of Rs.8,000/-, the first defendant said that he would make his own arrangements for paying the said liability before the date

fixed for completion of the same. But the plaintiff volunteered to pay the entire sum of Rs. 12,000/- himself to the Life Insurance Corporation of

India agreeing to take credit in a sum of Rs. 8,000/-towards sale consideration, after adjustment of Rs. 4,000/- payable to the first defendant in the

previous sale deed dated 7-6-1978. The plaintiff paid Rs. 12,000/- to the Life Insurance Corporation of India on 30-8-1980. The first defendant

was waiting for the plaintiff to deliver the draft sale deed to him to obtain the first defendant''s approval thereto before engrossing the same on

stamp paper. The plaintiff did not turn up with a draft sale deed till 9.00 p.m. on 12-9-1980. By that time, the time for performance of the

agreement had expired. The plaintiff was informed by the first defendant that the plaintiff had committed breach of agreement of sale and also he

had forfeit the advance of Rs. 5,000/-. Further, the draft sale deed of the plaintiff contained the terms and conditions contrary to those set out in

the agreement of sale. The plaintiff wanted to make the minor son of the first defendant, i.e. the second defendant herein a party to the sale deed.

But the first defendant refused to make the minor son as a seller in the sale deed since the agreement specific ally stipulated for sale only by the first

defendant. The plaintiff also insisted on a deed of rectification of the sale deed being executed by the first defendant''s wife. This was also not a

term of agreement of sale dt. 14-7-1980. The draft sale deed also showed a sum of Rs. 12,000/- instead of Rs. 8,000/- for which sum alone the

plaintiff agreed to take credit towards the sale consideration. So the first defendant informed the plaintiff that the latter had committed breach of the

agreement of sale and that the plaintiff had also forfeited the advance of Rs. 5,000/-. The first defendant is willing to pay back the balance of Rs.

13,000/-. On 2-10-1980, the plaintiff wanted to settle the matter with the first defendant stating that the plaintiff would give up the agreement and

have the agreement cancelled by receiving back the amount of Rs. 22,000/- paid by him. As the first defendant was not willing to have the second

defendant joining the sale deed the first defendant agreed to repay Rs. 18,000/- to the plaintiff. The plaintiff informed the first defendant that He

would pay the sum of Rs. 4,000/- due under different transaction to the first defendant and he wanted a sum of Rs. 22,000/- to he repaid by the

first defendant. The first defendant agreed to repay Rs. 22,000/- to the plaintiff within 30 days. The plaintiff also endorsed on the copy of the letter

that it was a true copy of the original received by him and he also signed the endorsement. The plaintiff thus gave up his right under the agreement

of sale dt. 14-7-. 1980 and agreed to receive Rs. 22,000/- from the first defendant. The letter dt. 2-10-1980 was brought by the plaintiff himself

typed on a sheet of paper in duplicate, the original of which was on a stamp paper. The plaintiff took back the original matter with him. The first

defendant was taking efforts to repay Rs. 22,000/- to the plaintiff. Aggrieved with this, the plaintiff started giving trouble to the first defendant by

giving a report to the commissioner of Police falsely. The entire area of Rs. 250 Sq. ft. is built up and the property was worth about Rs. 37,500/-.

The first defendant never agreed to evict the tenants in the occupation of the property already sold to the plaintiff in 1978. The first defendant was

always ready and willing to complete the sale as per the agreement. The plaintiff was aware in 1978 of the liability of the first defendant, his brother

and sisters to pay the Life Insurance Corporation of India the amounts due under and decree obtained by the latter. The said decree is a mortgage

and the entire 45 grounds belonging to the first defendant, his brother and sisters was the subject matter of the decree. The property mortgaged to

the L.I.C. of India was worth several lakhs of rupees. The first defendant was paying the decree amount from time to time to the L.I.C. of India

and a susbtantial portion of the decree amount had been paid by the first defend ant. It was the plaintiff who volunteered to pay Rs. 12,000/- to the

L.I.C of India and take credit for Rs. 5000/- in the sale consideration. The plaintiff had retained Rs. 4,000/- out of the sale consideration of the

property sold on 1978. The plaintiff agreed to pay Rs. 12,000/- to the L.I.C. of India to discharge the entire loan amount and the liability of the

first defendant amongst his brothers and sisters would he a portion of Rs. 12,000/-. On 2-10-1980, the plaintiff persuaded the first defendant to

give a letter agreeing to return Rs. 22,000/- instead of Rs. 18,000/-. It is the plaintiff who insisted on in Corporation of terms and conditions not

agreed to in the agreement of sale dt. 14-7-1980. The plaintiff did not pay the balance of sale consideration before 12-9-1980 and the plaintiff

produced the draft sate deed to the first defendant only at 9.00 a.m. on 12-9-1980 after the lime for performance of agreement was over. To

maintain cordial relationship with the plaintiff, the first defendant gave up his right to forfeit the advance and agreed to repay Rs. 22,000/- even

though the plaintiff paid only Rs. 18,000/- towards sale consideration. No amount was paid by the plaintiff to the said Natarajan. It is not true that

Natarajan built up the superstructure on the land with the money of the plaintiff. It is not true that the property was allotted to the first defendant

subject to the liability. The first defendant never agreed to pay Rs. 4,000/- to the plaintiff. But it is the plaintiff who has to pay Rs. 4,000/- to the

first defendant which the plaintiff had retained under the previous sale deed. In the agreement of sale it is not stated that the plaintiff should vacate

the tenant. The agreement gives the option to the first defendant of delivering the property without vacating the tenant residing therein. There is no

agreement between the plaintiff and the first defendant that the first defendant should spend Rs.6,000/- or any other amount for vacating the tenant.

The plaintiff paid only Rs. 18,000/- and he has not tendered the balance of sale consideration till the date of expirty of the agreement of sale or

even thereafter. The first defendant never agreed to spend Rs.6,000/- or any other amount for vacating the tenant. There was no condition in the

agreement of sale that the first defendant should deliver vacant possession. The plaintiff has not been ready and willing to perform his part of the

agreement. The plaintiff was not willing to take the sale deed from the first defendant who alone was a party to the agreement of sale. The first

defendant never entered into an agreement of sale as manager of any joint family. The agreement of sate was entered into by the first defendant in

his individual capacity. In fact, the plaintiff had purchased another property in 1978 from the first defendant only. The agreement of sale was not

made for the benefit of the second defendant. The plaintiff cannot enforce the agreement of sale as against the second defendant who was not a

party to agreement of sale. The first defendant reserves his right to claim a sum of Rs. 10,000/ -by way of compensation fro in the plaintiff for

giving a false police complaint against the first defendant. The plaintiff is not entitled to Rs. 22,000/ - but he is entitled to Rs. 13,000/-alone. The

plaintiff forfeits his advance amount by his breach of agreement of sale. The plaintiff agreed to adjust Rs. 8.000/-alone out of Rs. 12,000/- paid to

the Life Insurance of India towards sale consideration. The suit against the second defendant is not maintainable. The plaintiff is not entitled to

specific performance or for damages. The plaintiff is entitled to claim Rs. 13,000/-which the first defendant is willing to pay. The first defendant

prays that the suit against the second defendant has to be dismised with costs and the suit against the first defendant in other respects may be

dismissed with costs.

The trial Court framed as many as five issues, namely, (1) Whether the plaintiff had committed breach of the agreement of sale; (2) Whether the

plaintiff is entitled to specific performance of the agreement of sale; (3) Whether the plaintiff is entitled to damages of Rs. 10,000/- from the

defendants; (4) Whether the suit against the second defendant is maintainable; and (5) to what relief the plaintiff is entitled.

The lower court has given a finding with regard to issues Nos. 1, 2 and 4 by stating that the plaintiff has committed breach of the agreement of

sale, that he is not entitled to specific performance of agreement of sale and that the plaintiff is not entitled to any relief as against the second

defendant. With regard to issue No. 3, the lower court found that the plaintiff is not entitled to Rs. 10,000/- by way of damages. The lower court

gave a decree for recovery of Rs. 22,000/- from the first defendant with interest at 9% per annum and the suit as against the second defendant was

dismissed without costs.

The plaintiff, aggrieved with the judg- ment of the lower court has filed this appeal. Mr. K. Sarvabhasuman, learned Senior Counsel appearing

for the appellant contended that the suit property is the family property of the first defendant and the first defendant as the father and eldest

member and also manager of the Hindu Joint family, is bound to execute the sale deed for himself and also for the minor son, the second

defendant, since the agreement of sale and the consideration received by the first defendant are for the benefit of the minor second defendant also.

Learned counsel for the respondents pointed out that the trial court has not framed any such issue as to whether the agreement of sale and the

portion of the consideration received by the first defendant, are for the benefit of the minor second defendant also. First of all, we have to find out

whether there is any pleading at all in the plaint to the effect that the agreement of sale in question is for the benefit of the second defendant also. In

para 19 of the plaint it is stated that the defendants constituted a Hindu Co-parcenary of which the first defendant is the Manager and the

agreement of sale binds the second defendant even though he has not been specifically impleaded as a party. The agreement was made and is for

the benefit of the second defendant also. In para 9 of the plaint, it is stated that the Life Insurance Corporation of India had filed a suit and was

seeking to attach the propery and wanted the plaintiff to pay a sum of Rs. 12,000/- to the Life Insurance Corporation of India to avert attachment

and admittedly, the plaintiff has paid a sum of Rs. 12,000/- to the L.I.C. on India by way of demand draft in favour of L.I.C. of India on 30-8-

1980 through the first defendant and thereby the plaintiff averted the attachment. At the time of agreement of sale on 14-7-1980, the plaintiff had

paid Rs. 5,000/- to the first defendant and on 26-8-1980, the plaintiff had paid another sum of Rs. 5,000/- to the first defendant and there is an

endorsement on the agreement of sale to that effect. At the time of second payment of Rs. 5,000/- on 26-8-1980, it was agreed that the sale

should be completed on 12-9-1980. Therefore, there are pleading in the plaint to show that the agreement of sale was made for the benefit of the

minor second defendant also. Even though the lower court has not framed any issue to that effect I am inclined to frame the following points:--

(1) Whether the plaintiff is entitled to specific performance of the agreement of sale; (2) Whether the agreement of sale dt. 14-7-3960 entered into

between the plaintiff and the first defendant is also for the benefit of the minor second defendant and if so whether the minor second defendant is

also bound by the agreement of sale; (3) Whether the plaintiff is entitled to refund of a sum of Rs. 22,000/-only from the first defendant and (4)

Whether the plaintiff is entitled to damages of Rs. 10,000/-'' from the defendants for breach of agreement of sale.

There is no dispute with regard to agreement dt. 14-7-1980 entered into between the plaintiff and the first defendant agreeing to sell the suit

property for a sum of Rs. 47,500/- to the plaintiff. It is also admitted that the first defendant has received a sum of Rs. 5,000/- as advance on the

date of agreement. It is stated in the agreement Ex. A.1 that the sale has to be executed within a period of 60 days from that date. It is also

admitted by the first defendant that he has received another sum of Rs. 5,000/- on 26-8-1980. Subsequently, the plaintiff has paid Rupees

12,000/- to the L.I.C. of India. So, totally the plaintiff has paid Rs. 22,000/- to the first defendant. There is a dispute between the plaintiff and the

first defendant with regard to the sum of Rs. 6,000/-. The plaintiff was examined as P.W. 1 and the first defendant was examined as D.W. 1. Exs.

A.1 to A.6 and Ex. B.1 to B.6 were marked by the respective parties. The plaintiff has given evidence that he was always ready and willing to pay

the balance of sale consideration and get the sale deed executed. According to him, to sent Ex. A.2 dt. 14-2-1991 to the defendants and Ex. A.5

is the draft sale deed sent by the plaintiff in the year 1990 to the first defendant. The first defendant has sold a portion in the suit survey number

consisting of a house and site on 7-6-1978 under Ex. B.2 to the plaintiff for a sum of Rs. 18,000/-. It is the case of the first defendant that the

plaintiff retained a sum of Rs. 4,000;- under Ex. B.2 sale deed promissing to repay the sum to the first defendant later on and that the plaintiff failed

to pay the said sum. The first defendant wanted to get back the sum of Rs. 4,000/- also from the plaintiff; whereas the plaintiff contended that he

has paid the entire sale consideration of Rs. 18,000/- under Ex. 11.2 to the first defendant and that there is no balance at all. I have gone through

the sale deed Ex. B. 2 and I do not find that any portion of the sale consideration has been retained by the plaintiff to be paid back to the first

defendant. There is no record to show that the plaintiff has to pay Rs. 4,000/- under Ex. B.2 sale deed to the first defendant excepting the

interested testimony of D.W. 1. I do not accept the case of the first defendant the the plaintiff has to pay Rs. 4,000/- being the balance of sale

consideration to the first defendant under Ex. B.2. The suit property lies in Door No. 282 (old No. 64/1) Surianarayana Road, Kasimedu,

Reyapuram and in Block No. 64, R. S. No. 3618/20. Ex. B.2 sale deed is in respect of portion of house and laid in R.S. No. 3618/20. The suit

property also is situated in the same survey number. So. the entire property mentioned in Ex. B.2 sale deed and also in the agreement of sale under

Ex. A.1 was acquired by the first defendant''s father late Devaraja Gramani as stated in Ex. B.2 sale deed itself and so that the suit property is

ancestral property in the hands of the first defendant. So, the second defendant also will have interest over the suit property. It is not and it cannot

be disputed that the defendants 1 and 2 are living together and the first defendant is the Manager of the Hindu joint family consisting of defendants

1 and 2. The plaintiff has paid Rs. 12,000/- for discharging the decree debt due by the first defendant and others to the L.I.C. of India which has

got a mortgage over the entire property including the suit property. In the plaint,"" there is a mention that the agreement of sale was entered into by

the first defendant with the plain tiff (para 19 of the plaint) for the benefit of the second defendant also. It is also stated in Ex. A.1 that by way of

family settlement, the propery agreed to be sold has been allotted to the share of the first defendant. The plaintiff has stated in his evidence that he

has demanded the first defendant to execute and register the sale deed whenever he met him. The first defendant was not willing to include the

second defendant in the sale deed. It is seen that the plaintiff had demanded the first defendant to get ratification deed from the first defendant''s

wife also. Further, the plaintiff has also required the first defendant to deduct certain other amounts, namely, a sum of Rs. 4,000/- which was paid

to the first defendant''s brother D. Natarajan when the plaintiff was his tenant, for the purpose of constructing the superstructure. Since the building

was allotted later on to the first defendant''s share, that sum was liable to be given craiit to by the first defendant to the plaintiff. The first defendant

did not accept the liability of Rs. 4,000/-. The plaintiff also made a demand of Rs. 5,500/-from the first defendant which sum, according to the

plaintiff the first defendant agreed to be expended for the eviction of the tenant from the sou property. The first defendant disputed the liability of

this amount of Rs.5,500/- also. After duducting the above-said sum, the plaintiff called upon the first defendant to fix a date for the registration of

the sale deed by receding the balance of Rs. 15,500/- due under the agreement by the plaintiffs nonce dt. 11-2-1931. But, without prejudice to the

abovesaid contention of the plaintiff, the plaintiff has prayed for the relief of specific performance of agreement of sale and alternatively without

prejudice to the abovesaid relief of specific performance, the plaintiff also sought for a decree for refund of the sum of Rs.22,000/- paid by him to

the first defendant as advance.

Learned counsel for the respondents contended that the plaintiff is not entitled to specific performance of agreement of sale due to his own

laches and also on the ground that the plaintiff wanted the sale deed from the defendants and also a rectification deed from the first defendant''s

wife contrary to the agreement of sale. As I have pointed out earlier, there is nothing wrong in the demand of the plaintiff requesting them to

execute the sale deed since the suit property is a joint family ancestral property and the second defendant is a member of the Hindu Coparcenary

consisting of the defendants 1 and 2. Even though the second defendant has not been specifically included the agreement of sale under Ex. A.1 it is

for the benefit of the defendant and the first defendant had received a partion of sale consideration from the plaintiff for discharing the debt due to

the L.I.C. of India on a mortgage in respect of large area including the suit property.

The other objection taken by the first defendant is that Ex. A.5 is not the draft sale deed sent by the plaintiff to the first defendant; but it was

only Ex. B.5 which was sent to the first defendant. No doubt, there are variance between Ex. A.5 and Ex. B.5. But when considering the entire

facts and circumstances of the case, the first defendant need not have taken objection to Ex. B.5 and need not have objected to the execution of

the sale on a flimsy ground. According to the plaintiff, it is Ex. A.5 that was sent to the first defendant. After comparing Exs. A.5 and B.5, I am of

the opinion that it is Ex. A.5 that the plaintiff has sent to the first defendant for approval. Whatever it is, the draft sale deed is not the criterian. But

the question is whether the plaintiff was ready and willing to execute the sale deed and whet her the first defendant has refused to execute the sale

deed and whether it is proper. On the side of the defendants, the first defendant was examined as D. W. 1. It is admitted by the first defendant that

he agreed to refund the sum of Rs.22,000/- to the plaintiff within 30 days from the date of Ex. B.6 in 1980. But it is also admitted by the first

defendant that he did not return the sum of Rs. 22,000/- to the plaintiff within 30 days. The reason given by the first defendant for non-payment of

the said amount to the plaintiff is that he owed a sum of Rs. 1,000/- to the L.I.C. of India and on payment of that amount only, he could secure the

property and obtain the money. From this, it is seen that the first defendant was not in a position of return the money to the plaintiff as agreed to by

him. In the suit, the lower court has refused the relief of specific performance of agreement of sale in favour of the plaintiff. But the lower court

granted a decree for a sum of Rs. 22,000/- as against the first defendant. That judgment was passed by the trial court on 15-3-1983. Till now, it is

stated by the appellant that the first defendant has not returned the decree amount to the plaintiff. The first defendant in his evidence, has stated that

the suit property was purchased by his grandfather, that he is having a son and a daughter and that his son (second defendant herein) has no share

in the suit property. But the first defendant has stated that his son the second defendant was given some other property on an earlier family

settlement. The said family settlement was not at all produced by the first defendant before the lower court. Even in the earlier sale deed executed

by the first defendant in favour of the plaintiff, there is no mention that the second defendant was given some other property. There is also no

mention at all in Ex. B.2 sale deed executed by the first defendant in favour of the plaintiff that a sum of Rs. 4,000/- was retained by the plaintiff.

Therefore, the demand of the first defendant to the plaintiff to pay a sum of Rs. 4,000/- is only false and it appears to be harassing in order to

evade the enforcement of the agreement of sale. In Ex. A.1 agreement it is stated ""as agreed by you, you made continue or vacate the tenancy of

one. Mr. Manohar being a tenant of mine, presently in the said sale scheduled property"". The word ""you"" herein refers to the plaintiff only.

Therefore, it is seen that at the time of Ex. A.1 agreement dt. 14-7-1980 there was a tenant by name Manohar in the suit property and that the

plaintiff was given the option to retain him as a tenant or to vacate him from the suit property. It was suggested to the first defendant in cross-

examination that Ex. B.5 draft sale deed was not at all handed over by the plaintiff. But the first defendant as D.W. 1 has denied this suggestion. It

is seen from the evidence of D.W. 1 that the plaintiff brought the draft sale deed even on 12-9-1980. The refusal of the first defendant to execute

the sale deed in favour of the plaintiff as agreed to, is not reasonable and just. The plaintiff was informed by his advocate that without including the

minor in the sale deed, the sale would not be valid. The reason for the plaintiff for demanding the first defendant to include the minor son, the

second defendant in the sale deed, is just and proper since, even according to the first defendant the suit property was ancestral joint family

property in which the account defendant has got a share. The evidence of the first defendant that his minor son was given same other property in

the family arrangement, is not acceptable and there is also the record in support of his evidence. Therefore, I am of the view that the second

defendant has got interest in the suit property and so that the demand made by the plaintiff to execute the sale deed including the second defendant,

is just and legal. Further, the second defendant is also benefited under Ex.A.1 sale transaction since the sum of Rs. 10,000/- was received by the

first defendant and also a sum of Rs. 12,000/- was paid by the plaintiff to L.I.C. of India to discharge the decree debt in respect of the suit

property and other properties of the first defendant''s family.

Learned counsel for the respondent relied upon the judgment reported in Baluswami Aiyar v. Lakhshmana Aiyar, (1921) 13 Mad LW 562 :

AIR 1921 Mad.172. In that case, the managing member of a joint Hindu family entered into a contract for sale of joint family lands and in a suit for

specific performance by the purchaser the contract was found not binding on the other coparceners and in the facts and circumstances of that case,

it was held that section 15 of the Specific Relief Act applies to that case and if the purchaser elects to do so, specific performance can be decreed

against the vender for his share alone, but only on payment to him of the full consideration agreed for the whole property. In that case, it was found

on facts that the contract for the sale of joint family lands was found not binding on the other coparceners; but whereas in this case, I hold that the

agreement of sale Ex. A. 1 is for the benefit of the joint family consisting of defendants 1 and 2 and that the agreement of sale was also entered into

for the benefit of the second defendant minor and that the second defendant-minor was also benefited by the contract in as much as the sale of the

suit properly and other properties was averted by payment of Rs. 12,000/- to the L.I.C. of India by the plaintiff on behalf of the defendants. But

for the payment of the said sum of Rs. 12,000/- by the plaintiff to the L.I.C. of India, a portion or whole of the suit property or other properties

might have been brought to sale in execution by the L.I.C. of India. In that manner, the 2nd defendant was also benefited by the execution of the

contract and the part of sale consideration paid by the plaintiff. Therefore, the decision quoted above, will not apply to the facts of the present

case. In the decision Poochammal v. Chinnasamy Thevar (reported in 1983 1 MLJ 36 , this Court (V. Sethuraman, J.) has held that the Kartha of

a Hindu joint family is competent to enter into a contract for sale of the property to discharge an earlier mortgage, to incur expenses for the

marriage of his daughter and to maintain the family itself. Learned counsel for the respondents pointed out that the plaintiff has prayed for the

alternative relief for refund of the advance amount from the first defendant and so that he is not entitled to the relief of specific performance. Mr. K.

Sarvabhauman, learned senior counsel for the appellant contended that the alternative relief for refund of advance amount is only without prejudice

to the right of the plaintiff for getting the relief of specific performance. Even the plaint itself mentions ""alternatively without prejudice to the

contention of specific performance, the plaintiff has prayed for refund of the advance amount"". In the decision reported in Sakku Bai Amman Vs.

R. Babu Reddiar and Others, the plaintiff secured one of the two alternative reliefs and so the appeal seeking the other relief was found to be not

maintainable. But in this case, the plaintiff has not given up the relief of specific performance but only without prejudice to his prayer he alternatively

prayed for a decree for refund of the advance amount and therefore, the abovesaid decision is not at all applicable to the facts of this case. The

alienation by the Manager of the Hindu joint family for the benefit of the family is enunciated in the decision in the case of S.V. Sankaralinga Nadar

Vs. P.T.S. Ratnaswami Nadar and Others, .

In view of the above discussion, I hold that the plaintiff is entitled to specific performance of agreement of sale and that the agreement of sale is

also for the benefit of the second defendant and that the agreement of; sale is also binding on the second defendant. I hold that the plaintiff is not

entitled to damages of Rs. 10,000/- as claimed by him in the plaint and I direct the defendants to receive the balance of Rs. 15,500/- from the

plaintiff and execute and register the sale deed in favour of the plaintiff at the cost of the plaintiff. Time for deposit of the sum of Rs. 15,500/- is one

month from this date and the defendants shall execute and register the sale deed in favour of the plaintiff within five weeks from now. Accordingly,

the judgment and decree of the lower court are set aside and the appeal is allowed for a decree of specific performance of agreement of sale in

favour of the plaintiff by the defendants as prayed for in the suit. In the facts and circumstances of the case, there is no order as to costs.

Appeal allowed.