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2. Submissions, of Sri V.L.N. G.K. Murthy : Sri. V. L. N. G. K. Murthy, the learned Counsel representing the appellants made the following submissions. The learned Counsel would maintain that the concept of agency and the implied agency or the ratification are conflicting stands since they do not co-exist. Even otherwise there is no specific plea in this regard except one sentence in the pleading and hence this may not be sufficient to infer implied agency and this cannot be taken as a foundation for ratification. The learned Counsel also pointed out to para 9(a) which had been introduced by amending the pleading and had taken this Court through the respective pleadings of the parties, issues settled and also the findings recorded, the notices between the parties and the contents thereof. The learned Counsel also made elaborate submissions in relation to implied agency and ratification while drawing the attention of this Court to the relevant provisions of the Indian Contract Act 1872. The learned Counsel also would maintain that at the lime of the execution of the agreement the same was proceeded on the ground that the executants alone are the owners of the property and hence there cannot be a change of stand now so as to fasten the obligation even on the non-parties to the agreement of sale. The learned Counsel with all emphasis would contend that in the light of the facts and circumstances the non-parties to Ex. A-1 cannot be made liable under Ex. A-1 either on the ground of implied agency or on the ground of ratification and these findings are totally unsustainable. The learned Counsel also pointed out that the minors had attained majority and the question of Karta representing may not arise. The learned Counsel also would contend that the 8th defendant may be competent to alienate representing defendants 14 and 15 also. Likewise, the 1st defendant as Karta may enter into such transactions on behalf of the minors in the event of the transaction being supported by legal necessity. Even otherwise, 18th defendant is a non-party to Ex. A 1. The learned Counsel also explained the minors had attained majority and had chosen to contest the litigation. The learned Counsel also made certain submissions on the aspect of succession of the respective shares under the provisions of me Hindu Succession Act 1956 as amended subsequent therein. The learned Counsel also pointed out that the 34th defendant was not a party to Ex. A-1 and she was impleaded in I. A. No. 469 of 1992. The mere recital relating to the debts may not carry any weight and there is absence of legal necessity in the present case and hence the minors would not be bound by Ex. A-1. The 24th defendant was impleaded in the year 1992 after the period of limitation and there is no specific order saving limitation in this regard and hence the suit is barred by limitation as against the 24th defendant. On the aspect of interpolation relating to the recitals of delivery of possession the learned Counsel had taken this Court through the evidence of PW 2 and also the evidence of PW-1 in this regard and also would contend that in the light of the fact that the advance paid is only of a small proportion it is highly improbable that delivery of possession would have been recited or would have been given as shown in Ex. A-1. The Counsel also would maintain that the relief of specific performance being discretionary relief inasmuch as the respondent /plaintiff approached the Court with unclean hands the relief may have to be negatived. The learned Counsel also explained the contents of Ex. B-2 and would contend that this would show that the respondent/plaintiff was not ready and willing to perform her part of the contract but trying to get some time by introducing certain new conditions like encroachments. Submissions at length were made relating to the aspect of encroachments in the light of the evidence available on record. The learned Counsel also made certain submissions in relation to dereservation and the findings recorded by the trial Court in this regard. The Counsel also would point out that the ground of laches and the finding recorded in relation thereto by the trial Court as on the part of the defendants in a suit for specific performance cannot be sustained. The alleged clarification for the layout plan in Ex. B-2 in fact is a new condition under the guise of clarification and hence it may have to be taken that the respondent /plaintiff was not ready and willing to perform her part of the contract. The learned Counsel also would maintain that the mere fact that the litigation was conducted by one of the parties would not alter the situation as far as the binding nature of Ex. A-1 is concerned. The learned Counsel also placed reliance on certain decisions.

9. It is needless to say that the suit is filed for enforcement of the agreement of sale Ex. A-1 and a look at the recitals of Ex. A-1 may be essential for better appreciation of the respective contentions of the parties in the back ground of the facts and circumstances of the case. Ex. A-1 reads as hereunder:

(Vernacular text omitted).

The conditions stipulated in Ex. A-1 which had been referred to supra are self explanatory. It is not in serious controversy that defendants 4 to 6, sisters are not parties to the agreement of sale. It is also not in serious controversy that the 24th defendant who was impleaded as a party subsequent thereto also is not a party to Ex. A-1 Submission in elaboration were made in relation to the concept of implied agency or the concept of ratification. The said question would assume some importance to decide the question whether the non-parties to the agreement of sale in question are bound by the agreement of sale or not. In Indian Contract Act and Specific Relief Act, Pollock and Mulla, Volume II, on the aspect of 'implied ratification' it was stated:

10. On a careful scrutiny of the pleadings of the parties in general and the plaint in particular on the ground of implied agency or ratification there are no clear averments in relation thereto and a casual plea had been specified. Certain submissions were made that the plaintiff and the husband of the plaintiff PW- 1 entered into Ex. A 1 being conscious of the shares of the non-parties to Ex. A-1 and even otherwise the concept of implied agency or ratification being contradictory, both the pleas cannot be sustained. The Counsel representing the plaintiff had principally concentrated on the concept of ratification in the light of the conduct of the parties and the silence on the part of these non-parties to Ex. A-1 and also the way the litigation was conducted and how the other parties were playing the prominent role in entering into Ex. A-1 even on behalf of there which cannot be taken as implied ratification. The evidence of DW-2 is of some importance in this context. DW-2 deposed that she does not know at all the plaintiff or her husband and they never met her and they got a site at Kakinada and defendants 4 and 5 are her sisters. The 5th defendant is residing at Bobbili and she is suffering from paralysis and she cannot even walk. The 4th defendant is a deaf and 80 years old and she cannot move out and she is residing in a village in Bobbili. She further deposed that she does not know anything about the agreement of sale Ex. A-1 and they were not informed about the agreement by her brothers and her sisters also do not know about Ex. A-1 and they have no necessity to sell their shares in the site and they never attempted to sell their shares of site. DW-2 further deposed that the property is still joint and they have not yet divided the said property. They came to know about the agreement only when she received some paper and she did not receive any advance as alleged in the agreement and they have no intention to sell their share of the site to the plaintiff. In cross-examination no doubt this witness deposed that the 8th defendant is looking after the suit on behalf of themselves and the brothers always have been cordial and affectionate towards each other and they never questioned the acts of the brothers at any time and she does not know the defence. This witness also deposed that if she gets a share she intends to construct a house and she does not know how much extent each will get in the suit land. Even if it is 50 sq. yards she intends to raise a hut in the said site. She had denied the suggestion that because the individual shares would not be convenient for enjoyment the suit site was agreed to be sold. She further deposed that there was no necessity for her brothers to incur debts. She denied the suggestion that because the suit site is vacant and it is not fetching any income they sold the same and she also denied the suggestion that they agreed to sub scribe their signatures to the sale deed and only on that condition the suit agreement as executed in favour of the plaintiff and she had denied the other suggestions also. This is the evidence of DW-2.

In Mohamed Asgar Mohamed Mazhar and Anr. v. Arvind Raghunath Sawant and Anr. 2001 (5) ALD 30 (SC) while dealing with an agreement of sale of the property belonging to Hindu Undivided Family where the minor members of the family are not parties to the agreement and legal necessity for the sale had not been established, it was held that the Courts below are justified in refusing the relief of specific performance. In K.S. Vidyanandam and Ors. v. Vairavan it was held that it was not necessary that every suit for specific performance to be decreed provided it is within the period of limitation notwithstanding the time limits stipulated in the agreement and the Court may have to look into the relevant circumstances into consideration, the time limits specified in the agreement and determine whether this discretion to grant specific relief would be existing or not and on facts it was held that the appellant's story of repeatedly asking defendants to get the tenant vacated is to be rejected and that rise in prices of Madurai property induced the appellant to wake up after two and half years and demand specific performance and it was a case of total inaction for two and half years and it is inequitable to give the relief of specific performance. The Counsel representing the plaintiff while making elaborate submissions no doubt made an attempt to convince the Court that in the facts and circumstances of the case, the suit can be decreed so far as Ex. A-1 would relate to the respective shares of the parties to Ex. A-1. The 24th defendant was impleaded as a party and there is no specific order saving limitation and hence it is needless to say that the relief as against such a party cannot be sustained, not only that this party is a non-party to Ex. A-1, but also on the ground of limitation. Apart from this aspect of the matter, the contention of the ratification or implied ratification had been specifically negatived by this Court and hence it is needless to say that the sisters defendants 4 to 6 are not bound by the agreement of sale Ex. A-1. Strong reliance was placed on Kartar Singh v. Harjinder Singh and Ors. wherein an agreement to sell the property was entered into by a joint holder both on his own behalf as well as on behalf of his sister holding equal share and where the brother agreed to sell the whole of his share and also that of his sister but his sister refused to sell it was held that the decree for specific performance in respect of half share to be granted. The Apex Court also held that the difficulties in granting a decree by partitioning the property or where the property was scattered at different places, cannot be taken as legal difficulties and when the joint holders are having half share in the property there is no difficulty in apportionment of consideration also. On the strength of this principle, submissions in elaboration had been made in this regard. On facts the said decision is distinguishable. Here is a case where several parties entered into Ex. A-1 and several of them were minors said to be represented by the natural fathers. Except some recital in Ex. A-1, reference to certain debts and except the formal and casual evidence of PW-1 on the aspect of legal necessity no serious attempt had been made on the part of the plaintiff to establish the legal necessity for the purpose of entering into Ex. A-1 so as to bind the other minors too. There cannot be any doubt or controversy that subject to certain limitations the power of alienation can be exercised by a natural father. Clear evidence on both DW-1 and DW-3 is available and specific stand had been taken that there was absolutely no necessity to enter into this transaction for the purpose of education or maintenance of minors. Obviously, there was no necessity, much less, legal necessity, and it appears from the facts that PW 1 in the light of the situation in which the property was placed at the relevant point of time intended to take advantage and having entered into a transaction Ex. A-7, he thought of entering into this transaction also with these defendants. This Court cannot arrive at any other conclusion in the light of the peculiar facts and circumstances that the plaintiff was unable to establish the legal necessity on the part of the natural fathers to enter into this transaction on behalf of the minors so as to bind the minors also. The mere casual recital is not sufficient. Some more evidence is needed. As already referred to supra, no attempt had been made to let in any convincing or acceptable evidence in this direction. Hence, this Court is of the considered opinion that the relief of specific performance in relation to the respective snares also cannot be granted in view of the fact that the relief is a discretionary relief and also in view of the fact that absolutely there is no evidence in relation to the legal necessity so as to bind the minors shown in Ex. A-1 at the relevant point of time who had attained majority subsequent thereto and had elected to dispute Ex. A-1 transaction.