1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 242 of 2006 Ghanshyamdas N. Chandak Vs. Parvati Anandrao Thawale & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri . B. G. Kulkarni Adv. for appellant. Shri N. A. Vyawahare Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 28 th March, 2008. Heard Counsel for the appellant and the respondents. Plaintiff who was unsuccessful in the Courts below has preferred this second appeal. He had instituted a suit for specific performance of the contract against defendants 1 to 3. The defendant No.1 is the 2 father. Defendants 2 and 3 are sons of defendant No.1. The plaintiffs contended that price was settled at Rs. 1,44,000/- out of which defendant No.1 paid Rs. 5100/- as earnest. It was agreed that sale-deed should be executed on 11.10.1981 free from all encumbrances. Plaintiff submits that he was ready and willing to execute the sale deed. Defendants avoided, hence he instituted a suit. The defendant has resisted the suit on the ground that defendant No.1 had no authority to sell the house. The house belonged to all the defendants jointly since the same was purchased from out of joint family funds. They also contended that plaintiff was not ready and willing to perform his part of the contract. The trial Court found that there was an agreement between the 3 parties. Plaintiffs contention that defendant No.1 had assured to obtain signatures of defendants No. 2 and 3 was not correct. Property was a joint family property. Defendants 2 and 3 were not bound to perform contract and plaintiff was not ready and willing to perform his part of contract. Holding so learned Judge of the trial Court dismissed the claim for specific performance of contract and or refund of the earnest. First appellate Court concurred with the findings recorded by the trial Court and dismissed the appeal. Learned counsel for the appellant contended before me that the Courts below have fell in error in holding that the suit property was joint family property. He submitted that defendant No.1 had contended in the Rent Control Proceedings that he was 4 the exclusive owner of the suit house and that therefore the defendants 2 and 3 were estopped. The estoppel can be at the most can be against defendant No.1 but cannot be against defendants 2 and 3. There are two concurrent finding of facts. The property was joint. This finding seems to be supported by the fact that agreement bears the name of all defendants as executants. Therefore, if at all defendant No.1 alone was owner of the house there was no reason for him to have the names of defendant No.2 and 3 added in the agreement of sale itself. Further it appears from the agreement of sale that though there are three names in the agreement of sale as persons executing the agreement the said agreement is signed by defendant No.1 alone. This shows that defendants 2 and 3 were absolutely reluctant to execute the sale-deed 5 in favour of plaintiff or to sell the property at all. This agreement therefore could not bind defendants 2 and 3 and that was rightly so held by the Courts below. Since the property was joint family property and defendants 2 and 3 have an interest in the property and they having been made party to suit, they having opposed, the Courts below are right in not granting the decree by exercising discretion rightly. I do not see any perversity in the finding of the Courts below. It was contended that the finding of the Courts below that plaintiff was not ready and willing to perform his part of the contract is perverse. It appears that, that finding is not very sound but then the discretion has been used by the Courts below in not granting the decree for specific performance cannot be said to be perverse. Plaintiff had not sought 6 any other relief as could have been sought under Section 22 of the Specific Relief Act by seeking decree of partition of 1/3rd share. That having not been done I do not see any substantial question of law involved in the appeal. Appeal is dismissed in limine. JUDGE svk