KRISHNAN SATHYADAS Vs. LAKSHMIKMTY AMMA

JUDGEMENT

(1.) Plaintiff is the appellant. His suit for specific performance of a contract of sale of immovable property was dismissed. But he was given a decree for refund of the advance amount with interest. First defendant is the owner of the property, who entered into the agreement with the appellant not only to sell his right, but the life interest of his mother, he second defendant, also. First defendant died after decree and appeal. Respondents 3 to 6 are his legal representatives. Among them, third respondent is the widow and others the children. Fourth respondent, after he attained majority, filed a memorandum of cross objection challenging the decree for refund of the advance amount and contending that the agreement itself is not valid as the first defendant had no alienable right since it is a joint family property.

(2.) Fourth respondent was impleaded in the appeal after the death of the first respondent only as his legal representative. Under Order XXII R.4(2), he can make his defence only appropriate to his character as legal representative of the first respondent. He cannot set up new or individual rights not set up by or not available to the first respondent or in consistent with the defence taken up by the first respondent. It is open to the court to allow a legal representative to be impleaded in his own personal capacity, in which case he could set up his own independent title. That is not the case here. The agreement was executed and the suit was contested by the first defendant as if the suit property belonged exclusively to him on partition. Now the fourth respondent says that the first respondent had no such rights and it is joint family property. In this suit, he cannot be heard to say so. For that, he must seek independent reliefs, if so advised.

(3.) Ext. A1 is the agreement dated 10-3-1981. Second defendant was not a party to it. But first defendant agreed to see that she is also joined as one of the executants. On that agreement, sale consideration was fixed at Rs. 45,000/- and Rs. 20.001/- was received as advance. Time stipulated was six months. The suit was filed on the allegation that though the appellant was ready and willing to perform his part of the contract and issued notice 27-8-1981, he defendants were not prepared. Contention is that second defendant, who was not bound by Ext. A1, was unwilling to join the sale deed and first defendant offered to sell his rights, but plaintiff backed out.