Specific Performance | Agreement Executed By Some Co-Sharers Without Consent Of Others Is Not Enforceable: Madras High Court

"When the defendants had no absolute right over the suit property execution of sale agreement by them is invalid and no right is acquired by the plaintiff by virtue of said agreement and the agreement is not executable as the same is barred by Section 17 of the Specific Relief Act" Madras High Court, in a significant ruling, held that a suit for specific performance cannot be decreed where the agreement to sell does not include all co-sharers of a joint family property, rendering the contract unenforceable.

A bench of Justice P. Dhanabal observed that such agreements, executed without the consent of all legal heirs, fail to pass valid title and are liable to be dismissed, particularly when the plaintiff fails to prove the fundamental requirements of readiness and willingness.

The case originated from a dispute where the respondent (plaintiff) sought specific performance of an agreement dated 07 December 2009 for the sale of a property by the appellants (defendants). While the trial court dismissed the suit, the first appellate court reversed the decision and decreed the suit in favour of the plaintiff. The defendants subsequently challenged this in the High Court, contending that the property was joint family property and that the agreement was, in fact, a security for a loan transaction rather than a genuine sale.

The primary questions before the court were whether the first appellate court erred in decreeing the suit despite the non-joinder of all co-sharers in the agreement and whether the plaintiff had sufficiently proven the mandatory requirement of readiness and willingness to perform the contract under the Specific Relief Act, 1963.

Court Examines Nature of Agreement

The court noted that the suit property originally belonged to the defendants' father, and upon his demise, all surviving legal heirs acquired a share. Since the agreement was not signed by all co-sharers, the court found the document inherently defective. The bench highlighted that the plaintiff's failure to include all necessary parties in the suit further undermined his claim, casting doubt on the genuineness of the transaction as an outright sale rather than a loan security.

Proving Execution and Readiness

The court emphasised that when a defendant specifically denies the nature of the document, the burden of proof shifts heavily onto the plaintiff. In this instance, the plaintiff failed to examine the attesting witnesses to the agreement. The court observed that the plaintiff's failure to establish his readiness and willingness to complete the transaction within the stipulated one-year period was fatal to his claim for specific performance.

Application of Section 17 of Specific Relief Act

The bench underscored that specific performance is a discretionary, not arbitrary, remedy. Referring to established precedents, the court ruled that an agreement to sell property by persons who do not have absolute title, while excluding other co-sharers, falls foul of the legal principles governing property transfers.

"The agreement is not executable as the same is barred by Section 17 of the Specific Relief Act, by virtue of rights accrued in favour of legal heirs of deceased as enumerated under Section 8 of Hindu Succession Act"

Perversity of Appellate Findings

The court concluded that the first appellate court’s decision was perverse as it ignored the lack of evidence regarding the plaintiff's readiness and failed to account for the absence of all co-sharers in the contract. By decreeing the entire property for specific performance without impleading all necessary parties, the appellate court failed to follow established legal doctrines. Consequently, the High Court allowed the appeal, set aside the appellate decree, and restored the trial court's order dismissing the suit.

Date of Decision: 30 September 2026