JUDGMENT 1. Being aggrieved by the judgment and decree dated 8.8.1995, passed by First Additional District Judge, Ratlam in Civil Suit No.2-A/1990, whereby the suit filed by respondent No.1 for specific performance was decreed, the present appeal has been filed. 2. Short facts of the case are that respondent No.1 filed a suit for specific performance on 8.1.1990 against Bapusingh and Rajkunwar Bai, alleging that Bapusingh and Rajkunwarbai were mother and son and were owner of a land bearing No.356, bearing two survey numbers measuring 4.070 hectares situated at village Sejafta, Tahsil and District Ratlam. It was alleged that deceased Bapusingh entered into an agreement to sell the land of survey No. 166/509 measuring 4.050 hectares on 6.1.1987 for a consideration of Rs.27,500/- and towards earnest money respondent No.1 deposited a sum of Rs.14,900/- with Land Development Bank in the account of Bapusingh. It was further alleged that on 9.1.1987 deceased Bapusingh along with respondent No.1 went to Ratlam for executing the agreement to sale wherein it was acknowledged by Bapusingh that he has received Rs.20,000/-, which also includes Rs.14,900/-, which was deposited in his loan account. It was alleged that as per agreement the sale was to be executed within a period of 15 days. Further case of respondent No.1 was that the period of execution of sale-deed was extended on 17.1.1987 and a sum of Rs.4,200/- was further paid for depositing in the loan account of Bapusingh in Primary Agricultural Cooperative Credit Committee, Amleta. Further case of respondent No.1 was that on 20.1.1987, respondent No.1 along with Bapusingh and also along with one witness Bhanwarsingh went to one Kailash Narayan Thakkar, document writer for getting the draft of the sale-deed prepared, at that time it was pointed out by Kailash Narayan Thakkar that the sale-deed cannot be executed unless and until the 'Rin Pustika' is brought. It was alleged that since Bapusingh was not possessing the 'Rin Pustika', therefore, the period of the agreement was further extended for a period of one month. It was alleged that on 21.1.1987 further loan of Rs.1,400/- was given to Bapusingh by respondent No.1 for getting the documents prepared relating to 'Rin Pustika'. Further case of respondent No.1 was that thereafter repeatedly respondent No.1 asked Bapusingh to execute the sale-deed but the sale-deed was not executed by Bapusingh by one reason or another. It was alleged that on 21.1.1987 further loan of Rs.1,400/- was given to Bapusingh by respondent No.1 for getting the documents prepared relating to 'Rin Pustika'. Further case of respondent No.1 was that thereafter repeatedly respondent No.1 asked Bapusingh to execute the sale-deed but the sale-deed was not executed by Bapusingh by one reason or another. It was further alleged that registered notice was given on 29.6.1987, wherein it was made clear that respondent No.1 is ready and willing to get the sale-deed executed after payment of Rs.1,900/-, which is balance amount payable to Bapusingh. It was alleged that sale-deed was not executed. On the contrary Bapusingh filed a suit bearing No. 162-A/1981, for permanent injunction, wherein a temporary injunction was obtained on 28.9.1987, against which an appeal was filed by the respondent No.1, which was allowed and the temporary injunction granted in favour of Rajkunwarbai was vacated. It was further alleged that since the respondent No.1 has paid the substantial amount and was also ready and willing to pay the balance amount, therefore, a decree of specific performance be passed in favour of respondent No.1 and against Bapusingh and Rajkunwarbai to the effect to execute the sale-deed in favour of respondent No.1 on payment of Rs.1,900/-. 3. The suit was contested by the Bapusingh and Rajkunwarbai. After service of summons Bapusingh died and legal representatives were taken on record, who are appellants herein. Rajkunwarbai, who was the mother of Bapusingh and other legal representatives of Bapusingh, who are appellants No.2 to 6 filed the written statement wherein the transaction was denied and it was prayed that the suit be dismissed. After framing of issues and recording of evidence learned trial Court found that Bapusingh entered into an agreement to sell the suit property and received the consideration hence the suit filed by respondent No.1 was decreed against which the present appeal has been filed. 4. Mr. T.C. Jain, learned counsel for the appellants submits that the judgment and decree passed by learned trial Court is illegal and deserves to be set aside. Learned counsel submits that learned trial Court came to the conclusion that it was not Bapusingh alone who was owner of property. It was further alleged that Rajkunwarbai, mother of Bapusingh is co-owner of suit property. Learned counsel submits that learned trial Court came to the conclusion that it was not Bapusingh alone who was owner of property. It was further alleged that Rajkunwarbai, mother of Bapusingh is co-owner of suit property. It is submitted that Rajkunwarbai is not party to the agreement, therefore, even if it is presumed that any agreement was executed by Bapusingh then too no decree of specific performance could have been passed against Rajkunwarbai. 5. Learned counsel further submits that the transaction was a loan transaction and it was never an agreement to sell the property. Learned counsel submits that to protect the interest of respondent No.1, the agreement was executed. Learned counsel further submits that even if it is found proved that any agreement was executed, then too the respondent No.1 was not entitled for a decree of specific performance. 6. Learned counsel further submits that the learned Court below came to the conclusion that the suit property was undivided Joint Hindu Family Property, inspite of that learned Court below committed error in decreeing the suit. 7. Mr. A.K. Sethi, learned counsel for respondent No.1 submits that undisputedly Smt. Rajkunwarbai was also a co-owner of the suit property but since Bapusingh was 'Karta' of Undivided Joint Hindu Family, therefore, the agreement was executed by Bapusingh only. Learned counsel submits that since Bapusingh entered into an agreement and the property was of Undivided Joint Hindu Family in which Rajkunwarbai was also having share, therefore, Rajkunwarbai was impleaded as party. It is submitted that during pendency of suit Bapusingh died and his legal representatives are taken on record. Thereafter during pendency of appeal Rajkunwarbai also died, legal representatives of Bapusingh were already on record, therefore, name of Rajkunwarbai was deleted. Learned counsel submits that even if it is assumed that Rajkunwarbai was not party to the agreement then too, it does not make any difference because ultimately it is appellants who were owners of suit property right from the beginning being legal representatives of Bapusingh. Learned counsel placed reliance on section 43 of Transfer of Property Act, which lays down as under: "43. Transfer by unauthorised person who subsequently acquires interest in property transferred. Learned counsel placed reliance on section 43 of Transfer of Property Act, which lays down as under: "43. Transfer by unauthorised person who subsequently acquires interest in property transferred. -- Where a person (fraudulently or) erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists." 8. Mr. Sethi, further pleased reliance on section 13(1)(a) of T.P. Act, which lays down as under: "Section 13. Rights of purchaser or lessee against person with no title or imperfect title. -- (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely: (a) If the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest." 9. Learned counsel further submits that ample evidence is on record to show that it was not a loan transaction, because the amount was taken by deceased Bapusingh for payment of debts. It is submitted that respondent No.1 is in possession of suit property right from the year 1987, i.e., from the date of agreement. It is further submitted that in the facts and circumstances of the case the appellants have no case and appeal deserves to be dismissed. 10. From perusal of the record, it is evident that the agreement was dated 6.1.1987 while the suit was filed on 8.1.1990. Total sale consideration was of Rs.27,500/- out of which a sum of Rs.20,300/- was paid by the respondent to deceased Bapusingh. Since substantial sale consideration was paid by the respondent to deceased Bapusingh in the year 1987 itself, therefore, there was no justification for waiting for filing of the suit for a period of three years. 11. In the matter of Atul Kumar Jain v. Shriram alias Radheshyam [ 2007(4) MPLJ 234 ], Division Bench of this Court has observed that the Court must consider the circumstances of the case, conduct of the parties and their respective interest under the contract. 11. In the matter of Atul Kumar Jain v. Shriram alias Radheshyam [ 2007(4) MPLJ 234 ], Division Bench of this Court has observed that the Court must consider the circumstances of the case, conduct of the parties and their respective interest under the contract. In that case, Hon'ble Division Bench further observed that the plaintiff was not prompt, active, vigilant and diligent from the very beginning to get the sale-deed registered. He slept for the considerable time over his rights and did not prosecute the matter at the earliest opportunity available to him. If actually his rights were being infringed, then he should have immediately rushed to the Court to prevent the seller from executing the sale-deed of the disputed property. In the present case also, similar circumstances are existing. 12. Apart from this, undisputedly, Rajkunwarbai was the owner of the suit property alongwith deceased Bapusingh. Bapusingh was badly in need of money for payment of debts and a sum of Rs.14,900/- which was initially paid by the respondent was deposited in his loan account. Another sum of Rs.4,200/- was also deposited in the account of Bapusingh in Primary Agricultural Cooperative Credit Committee, Amleta. That apart, a sum of Rs.1,400/- was paid on 21.1.1987 to deceased Bapusingh for getting the documents prepared as Bapusingh was not possessing any document of his title. Thus, the respondent was knowing right from the beginning that it is not Bapusingh alone who is the owner of the suit property and Rajkunwarbai was also the co-owner. Admittedly, no agreement was executed by Rajkunwarbai in favour of the respondent. 13. Section 15(1)(a) of the Specific Reliefs Act, 1963 lays down that the order of specific performance can be passed against any party to the agreement. 14. In the matter of Chenguni Othayoth Thankom v. Kooloth Balkrishnan Nair [AIR 2002 Kerala 297], Division Bench of Kerala High Court refused to pass a decree of specific performance where other owners of the property were not included in the agreement. 15. So far as the submission of the learned counsel for the respondent that even if no agreement was executed by Rajkunwarbai then too since she was also a legal representatives of deceased Bapusingh therefore after the death of Bapusingh respondent is entitled for a decree of specific performance is concerned, it appears that Raj Kunwar Bai was the co-owner of the suit property alongwith Bapusingh. After the death of Bapusingh, Rajkunwar Bai also became the owner of the share of Bapusingh alongwith other legal representatives. Since there was no agreement between Rajkunwar Bai and the respondent, therefore, even if Rajkunwar Bai became one of the owners of the share of Bapusingh along with other legal representatives, then also, in the facts and circumstances of the case where no amount was paid to Bapusingh except to pay the loan amount, it appears that it is not a case where decree of specific performance be passed in favour of the respondent. 16. In the facts and circumstances of the case, this Court is of the view that the learned trial Court committed an error in granting decree of specific performance against the appellant. Since, it appears that the respondent is in possession of the property and the respondent was parted with money, in the year 1987, therefore, this appeal is allowed in part. Findings of the learned Court below so far as it relates to direction of execution of the sale-deed is concerned, is set aside and the appellant is directed to pay a sum of Rs.20,300/- to the respondent alongwith interest at the rate of six percent per annum from the date of agreement provided respondent hand over the possession to the appellants within a period of three months failing which respondent shall not be entitled to any interest. 17. With the aforesaid modification the appeal stands disposed of. Parties shall bear their own costs.