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2012 DIGILAW 894 (RAJ)

Ram Lal v. Bajrang Lal

2012-04-10

PRASHANT KUMAR AGARWAL

body2012
JUDGMENT : Prashant Kumar Agarwal, J. The defendant-appellants have preferred this Civil First Appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 26.07.2008 passed by Additional District Judge (Fast Track) No.1, Jhunjhunu in Civil Suit No.72/2006 whereby the learned trial Court has decreed the suit for declaration, specific performance of agreement to sell and permanent injunction filed by the plaintiff-respondent. 2. There is no dispute between the parties regarding following facts: (i) Plaintiff-respondent and defendant-appellants are real brothers beings sons of one Shri Bhura Ram. (ii) They are co-tenants of agricultural land comprising in Khasra Nos.677 and 678 (hereinafter to be referred as "suit property No. 1"), each brother having ?th undivided share in it. They are also co-tenants of one-half share of another agricultural land comprising in Khasra Nos.83 and 84 (hereinafter to be referred as the "suit property No.2"), each brother having ?th undivided share in it. (iii) Defendant-appellant-Shri Ram Lal executed a registered release deed dated 14.07.2006 of his ?th share in suit property No.1 in favour of defendant-appellants-Shri Jwala Prasad and Kishan Lal. Similarly, he also executed a registered release deed on the same day of his share in suit property No.2 in favour of defendant-appellant Shri Jwala Prasad alone. 3. The plaintiff-respondent filed the suit with the averment that defendant- appellant-Shri Ram Lal agreed to sell his undivided share in both the suit properties in sale consideration of Rs. 1,20,000/- to plaintiff-respondent and remaining defendant- appellants and after receiving the aforesaid sale consideration from them, executed an agreement to sell on 02.08.2000 and also handed over possession of his share so sold to plaintiff-respondent and remaining defendant-appellants. According to plaintiff- respondent he paid his share of sale consideration of Rs. 30,000/- in cash to Shri Ram Lal whereas each of the remaining purchasers also paid his respective share of the sale consideration. It was also averred in the plaint that since the date of execution of agreement to sell i.e. 02.08.2000, plaintiff-respondent and remaining defendant-appellants are cultivating the share of suit properties so sold by the defendant-appellant-Shri Ram Lal to them. It was also averred in the plaint that since the date of execution of agreement to sell i.e. 02.08.2000, plaintiff-respondent and remaining defendant-appellants are cultivating the share of suit properties so sold by the defendant-appellant-Shri Ram Lal to them. According to plaintiff-respondent he is purchaser of ¼th share of ?th share of Shri Ram Lal in suit property No.1 and ¼th share of ?th share of him in the suit property No. 2 and the defendant-appellant is bound by agreement to sell dated 02.08.2000 and sell ¼th share of his total share in both the suit properties to plaintiff-respondent and he is entitled for specific performance of the agreement to sell to that extent. It was also said in the plaint that both the release deeds dated 14.06.2006 are void, invalid and ineffective to the extent of share so sold by Shri Ram Lal to plaintiff-respondent and they are liable to be declared so. Relief of permanent injunction was also sought in the suit. 4. The defendant-appellants filed a joint written statement and it was contended by them that no agreement to sell dated 02.08.2000 was ever executed by defendant- appellant-Shri Ram Lal in favour of plaintiff-respondent and remaining defendant- appellants, no sale consideration was ever paid to Shri Ramlal and all the brothers are in joint possession of both the suit properties. It was also averred that as no such agreement to sell was ever executed, both the release deeds are validly executed documents and plaintiff-respondent has no right to challenge them. It was specifically averred that the agreement to sell dated 02.08.2000 being unregistered and insufficiently stamped is inadmissionble in evidence and cannot be acted upon and the suit is not maintainable on such a document. 5. The learned trial court after hearing both the parties and appreciating and evaluating the evidence available on record concluded as follows: (i) Defendant-appellant-Shri Ram Lal agreed to sell his undivided share in the suit properties to plaintiff-respondent and remaining defendant-appellants on 02.08.2000 in lieu of sale consideration of Rs. 1,20,000/- and after receiving the same in cash he executed agreement to sell (Ex. 1) on 02.08.2000 and also handed over possession of his undivided share to the purchasers including plaintiff-respondent and since then the plaintiff- respondent is in possession of the share sold by defendant-appellant Shri Ram Lal along with remaining purchasers. Plaintiff-respondent paid his share of sale consideration i.e. Rs. 1) on 02.08.2000 and also handed over possession of his undivided share to the purchasers including plaintiff-respondent and since then the plaintiff- respondent is in possession of the share sold by defendant-appellant Shri Ram Lal along with remaining purchasers. Plaintiff-respondent paid his share of sale consideration i.e. Rs. 30,000/- in cash to defendant-appellant-Shri Ram Lal and he received that amount. (ii) Although, agreement to sell (Ex.1) is unregistered but in view of proviso to Section 49 of Indian Registration Act, it is admissible in evidence and suit for specific performance of agreement to sell is maintainable on it. (iii) Both the release deeds are void, invalid and ineffective to the extent of share sold by defendant-appellant-Shri Ram Lal to plaintiff-respondent vide agreement to sell dated 02.08.2000 i.e. to the extent of ¼th share of ?th share of Shri Ram Lal in both the suit properties. Consequently, the suit filed by the plaintiff-respondent was decreed vide impugned judgment and decree dated 26.07.2008. Feeling aggrieved, all the defendant- appellants are before this Court by way of this appeal. It is pertinent to note that: (i) For the purpose of payment of court fee, the suit was valued at Rs. 30,000/- and court fee was accordingly paid for the relief of specific performance of contract but no separate court fee was paid for the relief of declaration and permanent injunction although objection was specifically taken in the written statement. (ii) Objection regarding insufficiency of stamp duty on agreement to sell (Ex. 1) was specifically taken in the written statement but that objection was neither considered nor decided by the Court below. (iii) Agreement to sell (Ex. 1) was exhibited and admitted in evidence without any objection being taken by defendant-appellants when it was tendered in evidence during the course of trial. (iv) The plaintiff-respondent paid Rs. 880/- as deficit stamp duty and penalty on Ex. 1 during the course of trial on 08.11.2006. 6. (iii) Agreement to sell (Ex. 1) was exhibited and admitted in evidence without any objection being taken by defendant-appellants when it was tendered in evidence during the course of trial. (iv) The plaintiff-respondent paid Rs. 880/- as deficit stamp duty and penalty on Ex. 1 during the course of trial on 08.11.2006. 6. Assailing the impugned judgment and decree, the learned counsel for the appellants has raised the following grounds: (1) Agreement to sell (Ex.1) in fact is not an agreement to sell but it can at the most be said to be a family settlement between the parties by which defendant-appellant-Shri Ram Lal agreed to give, or surrender his share in the suit properties to his brothers including plaintiff-respondent and, therefore, suit for specific performance could not be based on such a document as no title by way of sale passed to anybody including the plaintiff-respondent. It was further submitted that in Ex. 1 itself it has clearly been mentioned that it is a family settlement between the brothers. (2) No separate court fee was paid on the reliefs of declaration and permanent injunction although separate court fee was required to be paid as both these reliefs were sought independently and separately from the relief for specific performance of the contract. On the relief of specific performance court fee was required to be paid on the entire amount of sale consideration i.e. Rs. 1,20,000/- as indicated in agreement to sell (Ex.1) but the plaintiff-respondent has paid court fee on the valuation of the share allegedly sold to him i.e. on Rs. 30,000/- only. In this regard it was submitted that according to Section 40 of the Rajasthan Court Fees Act in a suit for specific performance of contract of sale court fee is required to be paid on entire amount of sale consideration as indicated in the document of contract on which the suit has been based. It was also submitted that so far as court fee on relief of declaration is concerned, the present case is covered under clause (b) of Section 24 of the Court Fees Act and court fee was required to be paid on one-half of the market value of the suit properties. (3) According to agreement to sell (Ex. It was also submitted that so far as court fee on relief of declaration is concerned, the present case is covered under clause (b) of Section 24 of the Court Fees Act and court fee was required to be paid on one-half of the market value of the suit properties. (3) According to agreement to sell (Ex. 1), it is clear that defendant-appellant-Shri Ram Lal delivered possession of his share of the suit properties to the purchasers and, therefore, according to clause (f) of sub-section (1) of Section 17 of the Indian Registration Act as applicable in the State of Rajasthan, Ex. 1 was required to be compulsorily registered and as it is not a registered document, it was not admissible in evidence and suit was not maintainable on its basis. According to learned counsel for the appellants the learned Court below has wrongly held that a suit for specific performance of contract is maintainable even on the basis of an unregistered agreement to sell. (4) It is an admitted fact that Ex.1 is also insufficiently stamped and, therefore, it was inadmissible in evidence for any purpose but the learned Court below did not consider and decide this point although specific objection was taken in the written statement. (5) Other purchasers did not file suit for specific performance of the agreement to sell although according to plaintiff himself they are also party to the agreement and in absence of that suit only to the extent of alleged share of the plaintiff-respondent was not maintainable because the agreement is one and indivisible. According to Section 12 of the Specific Relief Act, the Court is not competent to order specific performance of some part of the contract only. (6) Attracting the attention of the Court towards Section 16(c) of the Specific Relief Act, it was submitted that there is no averment in the plaint that plaintiff-respondent has been always ready and willing and he is still ready and willing to perform his part of the contract and no evidence was also produced in this regard and in absence of such specific pleadings and evidence, the suit was liable to he dismissed on this account only. No notice was given prior to filing of the suit asking defendant-appellant to execute sale deed and in absence of such a notice it is clear that plaintiff-respondent was never ready and willing to perform his part of the contract. According to learned counsel for the appellants even if no specific objection was taken in the written statement in this regard, it was the duty of the Court below to consider whether mandatory legal requirement of Section 16(c) of the Specific Relief Act has been fulfilled or not. (7) It is an admitted fact that at the time of execution of said agreement to sell, the suit properties were undivided and, therefore, in absence of partition by metes and bounds and allotment of a specific share to defendant-appellant-Shri Ram Lal, he was not entitled to make an agreement to sell of his undivided share and the same was void ab intio and thus, the suit was not maintainable on that basis. (8) A period of three years is prescribed for filing a suit for specific performance whereas the present suit was filed on 02.08.2006 long after expiry of prescribed period of three years from the date of execution of the said agreement i.e. from 02.08.2000. In support of his submissions, learned counsel for the appellants relied upon the case of Smt. Ishrat Jahan v. Rajia Begum & Ors. reported in AIR 2010 (MP) 36 . 7. On the other hand, learned counsel for the plaintiff- respondent by supporting the impugned judgment and decree, has submitted as follows: (i) Mere perusal of Ex. 1 clearly reveals that it is an agreement to sell as defendant- appellant-Shri Ram Lal agreed to sell his share in the suit properties in lieu of sale consideration of Rs. 1,20,000/- and in fact received that amount whereas a family arrangement arrived between the co-sharers of a property does not involve an element of passing of any consideration. Merely use of at one place in Ex.1 words "family arrangement" does not make it a document of family arrangement. According to learned counsel to determine the real nature of document the whole of the document has to be read and intention of the parties is required to be seen. Merely use of at one place in Ex.1 words "family arrangement" does not make it a document of family arrangement. According to learned counsel to determine the real nature of document the whole of the document has to be read and intention of the parties is required to be seen. (ii) In the suit the main relief sought was for specific performance of the contract whereas remaining reliefs are only ancillary and consequential to the main relief and, therefore, no separate court fee was required to be paid on the reliefs of declaration and permanent injunction. So far as court fee paid on the relief of specific performance of the contract is concerned, as. plaintiff-respondent has sought relief only to the extent of share agreed to be sold to him, proportionate court fee was required to be paid only on the amount of Rs. 30,000/- which admittedly has been paid in the suit. According to learned counsel otherwise also a suit cannot be dismissed only on account of the fact that deficit court fee has been paid and the concerned party can be ordered at any stage of the proceedings to pay the deficit court fee. It was further submitted that in case this Court comes to a conclusion that the plaintiff-respondent has paid insufficient court fee and some additional fee is required to be paid by him, then the appellants should also be ordered to pay the additional court fee in this appeal as they also have paid the same court fee which the plaintiff-respondent has paid. (iii) In view of proviso to Section 49 of the Indian Registration Act, the learned Court below has rightly held that a suit for specific performance of contract is maintainable even on the basis of an unregistered agreement to sell. (iv) As Rs. 880/- has been paid on 08.11.2006 as deficit stamp duty and penalty on Ex.1 during the course of trial, objection regarding insufficient duty does not survive. Otherwise also, as Ex. 1 has been admitted and exhibited in evidence without any objection, such an objection cannot be taken in this appeal. (v) Section 12 of the Specific Relief Act allows even specific performance of part of the contract. Otherwise also, as Ex. 1 has been admitted and exhibited in evidence without any objection, such an objection cannot be taken in this appeal. (v) Section 12 of the Specific Relief Act allows even specific performance of part of the contract. Although, in the present case only one and same agreement to sell was executed by defendant-appellant-Shri Ram Lal in favour of plaintiff-respondent and remaining purchasers but share agreed to be sold by him to plaintiff-respondent is separable from rest of his share, therefore, a suit for specific performance to the extent of share sold to the plaintiff-respondent is maintainable. The plaintiff-respondent has paid only Rs. 30,000/- as his part of the sale consideration and possession of share sold to him was separately delivered to him. (vi) There are sufficient averments in the plaint indicating that plaintiff-respondent was always ready and willing and he is still ready and willing to perform his part of the contract. Before filling of the suit notice was sent to the defendant-appellant-Shri Ram Lal asking him to execute sale deed in favour of the plaintiff-respondent which is a clear indication of the fact that he was always ready and willing to perform his part of the contract. Otherwise also, no part of the contract remained to be performed by the plaintiff- respondent as entire sale consideration was paid to seller Shri Ram Lal at the time of execution of the sale agreement. According to learned counsel it is not the requirement of law that some specific words have to be incorporated in the plaint indicating readiness and willingness of the plaintiff to perform his part of the contract and the substance of the facts pleaded has to be considered. (vii) It is not essential that if a co-sharer of a land intends to sell his undivided share, the land has to be partitioned first and only then the co-sharer can sell his separated share. According to learned counsel even undivided share in a joint property can be sold. (viii) For a suit for specific performance of contract, the prescribed period of three years does not run from the date of the agreement but it commences from the date on which the plaintiff comes to know that the defendant has refused to perform his part of the contract. (viii) For a suit for specific performance of contract, the prescribed period of three years does not run from the date of the agreement but it commences from the date on which the plaintiff comes to know that the defendant has refused to perform his part of the contract. In the present case, the period of limitation commenced when the release deeds were executed on 16.07.2007, therefore, the suit filled on 02.08.2006 cannot be said to be barred by time. In support of his submissions, learned counsel for the plaintiff-respondent relied upon the following cases: (1) Rajendra v. State of Rajasthan, reported in 2005(1) DNJ (Raj.) 505 (2) Ghan Shyam Das Gupta and another v. Anant Kumar Sinha and Others, reported in AIR 1991 (SC) 2251 (3) Javer Chand and Others v. Pukhraj Surana, reported in AIR 1861 SC 1655 (4) V.E.A. Annamalai Chettiar and Others vs. S.V.V.S. Veerappa Chettiar and Others, reported AIR 1956 SC 12 (5) Lachhmi Narain and another Vs. Kalyan and Another, reported in AIR 1980 (Raj) 1 (6) Durgadan v. Devidan, reported in 1974 RL W 296 (7) L.Rs. of Magna v. Amar Chand & Or., reported in 2007(1) RLR 533 (8) Narayan and Another v. Madan and Others, reported in AIR 2001 (Raj) 378 (9) Hailed Vs. Megha & Ors., reported in 2000(2) RLR 193 (10) Deenanath Vs. Chunnilal, report in AIR 1975 (Raj.) 69 (11) Faujmal v. Nathulal and Another, reported in AIR 1965 (Raj) 115 (12) Tek Bahadur Bhujil v. Debi Singh Bhujil and Others, reported in AIR 1966 (SC) 292 (13) Badat and Co. Bombay Vs. East India Trading Co., reported in AIR 1964 (SC) 538 . 8. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 9. My findings with reasons on each of the grounds raised on behalf of appellants are as below: (i) From the perusal of Ex.1 it cannot be said that it is not an agreement to sell but it is a document of family settlement arrived between the parties because there is clear mention in the document that defendant-appellant-Shri Ram Lal agreed to sell his ?th share in the suit properties in lieu of sale consideration of Rs. 1,20,000/- to his remaining brothers including plaintiff-respondent and he has received the entire sale consideration, it has also been clearly recited in the document that on demand being made by the purchasers, he will execute a sale deed in this regard. In a transaction in which an element of sale consideration is involved, such a transaction cannot be a transaction of family settlement. Merely because at one place in Ex.1 words "family settlement" has been mentioned it cannot be said that in fact the transaction was a family settlement between the parties and not an agreement to sell. It is well settled that to determine the nature of a document the whole of the document, has to be read and construed and it is to be gathered what was the real intention of the parties behind execution of the document. It the present case, it is very much clear that the only intention was that the defendant-appellant-Shri Ram Lal is selling his share in the suit properties to his remaining brothers. (ii) From perusal of plaint filed by plaintiff-respondent, it is clear that the main relief sought by him was for specific performance of agreement to sell dated 02.08.2000 whereas the remaining reliefs of declaration and permanent injunction are ancillary or consequential to the main relief and, therefore, no separate court fee was required to be paid on the relief of declaration and permanent injunction. Sub-section (1) of Section 6 of the Rajasthan Court Fees and Suit Valuation Act, 1961 provides that if in any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the aggregate value of the reliefs but the proviso provides that if a relief is sought only as ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief. I am of the considered view that in the present case the proviso to sub-section (I) of Section 6 of the Court Fees Act clearly applies and court fee was required to be paid only on the main relief of specific performance of contract and the rest of the reliefs being ancillary to the main relief, no separate court fee was required to be paid. Looking to the facts of the case and relief sought by the plaintiff-respondent it cannot be said that on the relief of specific performance of contract court fee was required to be paid on the entire amount of sale consideration of Rs. 1,20,000/- because the plaintiff- respondent has not sought specific performance of whole of the agreement to sell but only to the extent of share allegedly sold by the defendant-appellant-Shri Ram Lal to him. It is clear that Shri Ram Lal had ?th share in each of the suit properties which he agreed to sell to his remaining brothers equally and, therefore, the share sold to plaintiff-respondent comes only ¼th of ?th share of Shri Ram Lal. It is also clear that plaintiff-respondent paid Rs. 30,000/- only as his share of sale consideration to Shri Ram Lal. In this fact situation it cannot be said that court fee was required to be paid (sic. to pay) on entire amount of sale consideration. Section 40 of the Rajasthan Court Fees Act provides that in a suit for specific performance, whether with or without possession, fee shall be payable in the case of a contract of sale, computed on the amount of the consideration. I am of the view that the words "amount of consideration" do not mean whole of the sale consideration as mentioned in the contract of sale but only that part of the consideration which the plaintiff was required to be paid. Therefore, it cannot be said that the suit was under-valued and sufficient court fee was not paid in it. (iii) It is well settled that a suit for specific performance of contract of sale is maintainable even on the basis of unregistered agreement to sell in the light of proviso to Section 49 of the Indian Registration Act. Although, according to clause (f) of sub-section (1) of Section 17 of the Indian Registration Act as applicable in the State of Rajasthan, Ex.1 agreement to sell was required to be compulsorily registered as it recites the fact that possession of the property so sold has also been delivered to the purchasers but looking to the proviso to Section 49 of the Act it cannot be said that Ex.1 was not admissible in evidence and could not have been taken into consideration by the Court below. (iv) Although, in the written statement a specific objection was taken by the appellants that agreement to sell Ex.1 is insufficiently stamped and, therefore, inadmissible in evidence but it is clear that Rs. 880/- were paid on 08.11.2006 as deficit stamp duty and penalty during course of the trial and, therefore, this objection does not survive. It is also clear that Ex.1 has been admitted in evidence and was exhibited during trial when it was tendered in evidence without any objection. In view of Section 36 of the Indian Stamp Act as applicable in the State of Rajasthan such objection cannot be taken now at this stage of the proceedings. (v) This contention of appellants cannot be accepted that in view of provisions of Section 12 of the Specific Relief Act the Court is not competent to order specific performance of the part of the contract allegedly made in favour of plaintiff-respondent. There is no prohibition in Section 12 of the Act that if a person agrees to sell his property to more than one person and only one of them prays for specific performance of his part of the contract, the Court is not competent to enforce the contract to that extent. In the case of Kammana Sambamurthy (Dead) By LRs. Vs. Kalipatnapu Atchutamma (Dead) and Others, reported in 2011(1) CivCC 236 (S.C.) : 2011(1) ACJ 383 (S.C.) : 2011(11) SCC 153 Hon'ble Supreme Court has held that "where agreement of sale was with respect of entire property but it later appeared that vendor executant of agreement had only half- share in it, even then vendee would be entitled to decree for specific performance of agreement only to the extent of half share of vendor." When to the part of the vendor a contract for sale can be enforced, there is no reason to held that only that part of the contract which was made in favour of one vendee cannot be enforced. (vi) Although, it is legal requirement that the plaintiff must aver in the plaint that he was always ready and willing and is still ready and willing to perform his part of the contract, but the well settled legal position is that "no specific phraseology or language is required to take such a plea and readiness and willingness cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned. To gather true sprit behind a plea it would be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where statute requires any fact to be pleaded then that has to be pleaded, may be in any form. Unless a statute specifically requires a plea to be in any particular form, it can be in any form. The language in Section 16(c) of the Specific Relief Act does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded. The readiness and willingness to perform essential terms of contract may be inferred from totality of circumstances or conduct of plaintiff although mere filing of suit without further proof as to readiness and willingness is not such a circumstance." In the present case, in para 17 of the plaint it has been pleaded that the plaintiff is ready to bear expenses to he incurred for execution of sale deed by defendant in favour of plaintiff. In para 18 it has been stated that on 17.07.2006 the plaintiff sent a notice to defendant asking him to execute sale deed in his favour and the notice was served upon the defendant on the next day but he neither executed sale deed in favour of plaintiff nor sent reply to the notice. In para 20 of the plaint it has been averred that defendant may be bound down to execute a sale deed in favour of the plaintiff to the extent of ¼th of ?th share of the suit properties and also get it registered in the office of Sub-Registrar, Surajgarh. In para 20 of the plaint it has been averred that defendant may be bound down to execute a sale deed in favour of the plaintiff to the extent of ¼th of ?th share of the suit properties and also get it registered in the office of Sub-Registrar, Surajgarh. It was also pleaded that if the defendant fails to do so, the sale deed may be executed through Court. From the averments made in the plaint as referred to above, it appears that although words like "readiness" and "willingness" have not been used anywhere in the plaint but it is clear that in substance and essence it was pleaded by the plaintiff that he was ready and willing and is still ready and willing to perform his part of the contract. It is pertinent to note that from the evidence available on record it is clear that the plaintiff paid his part of the sale consideration of Rs. 30,000/- at the time of execution of agreement to sell and nothing remained to be paid by him. It is further clear that this statement of plaintiff has remained uncontroverted that he sent a notice on 27.07.2006 (i.e. before filing of the suit) to the defendant asking him to execute sale deed in his favour but the defendant neither executed sale deed nor replied to the notice. In view of the material available on record it cannot be said that the legal requirement of Section 16(c) of the Specific Relief Act has not been fulfilled and the suit was liable to be dismissed on this account only. (vii) Although, it is an admitted fact that at the time of execution of the agreement to sell the suit properties were in co-tenancy of the parties and partition did not take place between them but it cannot be said that defendant-appellant-Shri Ram Lal was not entitled to make an agreement to sell regarding his undivided share in the suit properties and for that reason the agreement was ab initio void and suit was not maintainable. The well settled legal position appears to be that a co-sharer can sell his undivided share in a joint property including a share in an agriculture land and the purchaser of such share comes in the shoes of the seller and he becomes co-sharer with the remaining sharers. The well settled legal position appears to be that a co-sharer can sell his undivided share in a joint property including a share in an agriculture land and the purchaser of such share comes in the shoes of the seller and he becomes co-sharer with the remaining sharers. (viii) Although, a period of three years is prescribed for filing a suit for specific performance of contract but that period does not commence from the date of execution of the agreement to sell but it starts from the date on which the plaintiff has notice that performance is refused. In the present case, although agreement to sell (Ex. 1) was executed on 02.08.2000 but only upon execution of release deeds dated 16.07.2007, it can be said that defendant-appellant-Shri Ramlal refused to execute sale deed in performance of agreement in favour of plaintiff-respondent and therefore, the suit filed on 02.08.2006 cannot be said to be barred by time. 10. To challenge the impugned judgment and decree, no other contentions were made on behalf of the appellants. As discussed above, none of the submissions made by the learned counsel for the appellants can be said to be tenable. Learned counsel has failed to show any reason requiring interference by this Court. Therefore, the appeal being meritless is required to be dismissed. Consequently, the appeal filed by the defendant-appellants being devoid of any merit, fails and the impugned judgment and decree dated 26.07.2008 passed by Additional District Judge (Fast Track) No.1, Jhunjhunu in Civil Suit No.72/2006 is affirmed and upheld. Nor order as to costs. Stay application also stands dismissed. Appeal dismissed.