(V) In my opinion, the above legal position is apt in the fact
situation present in this case. It is anxious to note that though
the appellants fully knew that the suit property was ancestral
property and three sons and wife of Ramchandra had interest
therein and when it was the case of the appellants that the
property was sold out for legal necessity none of the sons were
even joined as a party to the suit which is an indicator of the fact
that the appellants very well knew that he would not be able to
make any claim against all the three sons and would be able to
claim only against the defendant Ramchandra, who alone was
the defendant.
To sum up question nos.(a) and (b) therefore will have
to be answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.563 OF 1992
WITH
CROSS OBJECTION (ST). NO.22235 OF 2009
IN
SECOND APPEAL NO.563 OF 1992
Shri Kashinath Rajaram Kasabe and Ors. .. Appellants
Vs.
Shri Ramchandra Tukaram Kasabe,
CORAM: A.B.CHAUDHARI, J.
PRONOUNCED ON: 8TH OCTOBER, 2014
Citation;2015(1)ALLMR753
Read original judgment here; click here
1 Being aggrieved by the judgment and decree dated 26th
August, 1992 in Civil Appeal No.512 of 1986 passed by 7th Additional
District Judge, Nasik by which the appeal was partly allowed and the
decree for execution of sale deed in favour of the appellants plaintiffs
in Special Civil Suit No.63 of 1982 passed on 27th June, 1986 by Joint
Civil Judge, Senior Division, Nasik was modified only to the extent of
1/5th share of deceased Ramchandra Tukaram Kasbe, the present
Appeal was filed by the partly unsuccessful plaintiffs.
The facts of the case are as follows:
2 The appellants plaintiffs who are the original plaintiffs filed
Special Civil Suit No.63 of 1982 and stated that the suit land Gut
No.368 admeasuring 4H 69.4R belonging to the defendant
Ramchandra Tukaram Kasbe was agreed to be sold to the plaintiffs by
him for a total consideration of Rs.24,200/.
The defendant
Ramchandra had mortgaged the land with Nasik District Coop.
Land
Development Bank for sinking the well in Gut No.109 in the year
1970 but he could not repay the loan and the bank had threatened to
put his land to auction in the year 1981. Respondent defendant had
no other option than to dispose of the suit property to repay the loan
and that is why the suit land was put to sale. Upon negotiations, the
price was fixed and earnest amount of Rs.7300/was
agreed to be
paid and the agreement was executed on 1st August, 1981. The
possession of the suit land was delivered pursuant to the said
agreement dated 1st August 1981 to the appellants plaintiffs along
with the standing crops. The sale deed was to be executed within
one year by making payment of the entire loan outstanding amount
to the bank. The respondent Ramchandra was Karta of Hindu Joint
Family and had agreed to sell the suit land for the benefit of Joint
Family. The plaintiffs paid Rs.7300/to
defendant and deposited
Rs.5000.65ps. with the Land Development Bank on 3.9.80 towards
the outstanding loan. The plaintiffs were always ready and willing to
perform their part of the contract but defendant changed his mind
and did not perform his part of the contract and avoided to execute
the sale deed. Not only that the defendant refused to furnish
information as to the outstanding loan amount and finally refused to
execute the sale deed in the month of March 1982. The appellants
then came to know that defendant had in fact repaid the whole
amount to the bank and thus, committed breach of the contract and
it was essential to file the suit in question. The suit was resisted by
the defendant by filing written statement at Ex.16. The defendant
admitted about the loan on the suit property and the insistence of the
bank for repayment. He also admitted execution of the document of
agreement dt.1st August, 1981 in favour of the plaintiffs. But he
further submitted that he was in financial difficulty due to the
pressure from the bank to repay the loan amount and therefore,
asked the plaintiffs for some loan amount who agreed to give loan
due to friendly relations but the plaintiffs wanted the document by
way of security for loan which was executed by Ramchandra alone.
The transaction was thus, a loan transaction not to be acted upon and
the document was to be destroyed. The defendant respondent being
in disturbed state of mind executed the agreement Ex.51 due to
helplessness. He denied the delivery of possession so also the receipt
of amount of Rs.7300/and
that the amount of Rs.5000/was
to be
deposited in the bank on the next working day after the agreement
and the amount of Rs.2300/was
to be paid to Ambadas Ramu Ugle.
The amount of Rs.2300/was
not paid to Ambadas and the plaintiffs
straightway deposited Rs.5000/out
of Rs.7300/in
the bank. The
payment of Rs.5000/alleged
by the plaintiff was the same amount
and not separate from the amount of Rs.7300/.
The plaintiffs did
not pay the amount of the entire amount of the loan in the bank and
it was the defendant who was required to dispose of his other field
property and make payment therefrom of the entire loan amount on
7th April, 1982. It was thus the plaintiffs who committed the breach
of contract and therefore he made counter claim. The defendant also
took a stand in the written statement that the suit property was
ancestral property and could not have been agreed to be sold by him
alone since he had only 1/5th share in the suit property. The
transaction was merely a loan transaction and the appellants
plaintiffs fully knew about the joint nature of the property. He
therefore, resisted the decree for specific performance. The trial
Judge in all framed 29 issues and finally decreed the suit for specific
performance of the contract in respect of entire suit property, by
judgment and decree dt.27th June, 1986. On appeal, the learned
lower appellate court partly allowed defendant's appeal and granted
decree in favour of the plaintiffs to the extent only of 1/5th share
only of the defendant Ramchandra. Being aggrieved by the said
decree of the lower appellate court, the instant Second Appeal was
filed by the plaintiffs in this court.
ARGUMENTS:
3 In support of the appeal, the learned counsel for the appellant
made the following submissions:
(i) That the lower appellate court committed error in
holding that the respondent Ramchandra had no authority
to agree to sell the suit property in entirety to the
appellants plaintiffs. Even from the case pleaded by the
respondent defendant and the evidence on record, it was
clearly established that the suit property was agreed to be
sold for the legal necessity namely the financial pressure
from the land development bank which had been
pressurizing him for making repayment of the loan that was
advanced.
(ii) Though the legal necessity for sale of the suit
property to the appellants plaintiffs was duly established
the lower appellate court erred in refusing the decree for
the entire suit property. The deceased Ramchandra acted
as a 'karta' of the family and for saving the suit land from
being auctioned by the land development bank he agreed
to sell the suit property to the appellants and that was
obviously for the benefit of the family and the estate.
(iii) In the light of the several decisions and the legal
position that even if the other members/coparceners
in the
joint hindu family are adults, the Manager or the Karta of
the family is entitled to sell the suit property for the benefit
of the family or for the benefit of the estate. In the instant
case the need was writ large namely, to save the suit
property and therefore the agreement Ex.51 by
Ramchandra was executed acting as Karta of the family.
The lower appellate court committed a grave error in
ignoring the said aspect. Not only that the two adult sons
of Ramchandra in fact had signed the agreement as
attesting witness and therefore their consent for sale must
be inferred. The lower appellate court however ignored all
these aspects of the matter. It was only the third son
Yashwant who had not signed the agreement and the wife
of Ramchandra but then that would make no difference if
Ramchandra had decided to sell the suit property with the
consent of the other two sons and would bind the family.
(iv) The lower appellate court committed an error in
reversing the finding of fact and the decree made by the
trial court which held that the defendant Ramchandra and
his sons had deliberately with a view to thwart the claim of
the appellant issued public notice dated 29th March, 1982
Ex.67 and had instituted a Special C.S. No.56 of 1984 for
partition. That was a ploy to defeat the claim of the
appellant since the said Civil Suit No.56 of 1984 was
ultimately dismissed on 20th January, 1992. Thus,
defendant Ramchandra and his sons had changed their
mind and decided to breach the agreement by taking the
appellants plaintiffs for a ride.
(v) Though period of execution of sale as per Ex.51
was one year the respondent did not wait for the said
period but deliberately made repayment of the entire loan
amount themselves in order to defeat the legal remedy of
the appellants.
(vi) The lower appellate court did not frame any point
for determination in the impugned judgment contrary to
the procedure prescribed by Civil Procedure code and
therefore, this court may think of making remand order to
the lower appellate court.
(vii) Continuing the submissions the learned counsel
for the appellants submitted that the lower appellate court
committed an error restricting the decree for specific
performance only to the extent of 1/5th share of defendant
Ramchandra ignoring the fact that under Ex.51 the entire
suit property was agreed to be sold due to legal necessity.
(viii) The lower appellate court could not make the
payment of additional compensation which the appellants
are even now ready to offer in the light of the various
decisions of the Apex Court.
(ix) The lower appellate court committed an error in
ignoring the fact that the appellants were found in
possession of the suit property and paid substantial
amount.
(x) The lower appellate court erred in not applying
the law correctly as to the alienation of the property acting
as Karta of the family for the benefit of the estate or for the
benefit of the family.
4 Counsel for the appellants relied on the following decisions.
1. Satya Jain (Dead) through LRs. and others vs. Anis
Ahmed Rushdie (Dead) through LRs. and others
reported in (2013) 8 SCC 131
2. Shankarlal Ramprasad Ladha (died by L.Rs.) v. Vasant
Chandidasrao Deshmukh reported in 2009 (2) ALL
MR 93
3. Ramnath Rambhau Gujar (dead through LR.s) v.
Shamrao Gopal Petkar & Ors. reported in 2010(5)
ALL MR 1
4. Ramchandra Chunilal Dagad (deceased by LR.s) &
Anr. v. Vasant Bansi Somwanshi & Ors. reported in
2010 (5) ALL MR 218
5. The Designers Coop.
Hsg.Soc. vs. Udhav s/o.
Murlidhar Rasne & Ors. reported in 2011 (1) ALL MR
346
6. Jagannath Rangnath Chavan v. Suman Sahebrao
Ghawte & Ors. reported in 2013 (6) BCR 62
7. Brij Narain vs. Mangla Prasad and Others reported in
1923 Indian Appeals 129
8. Smt.Rani and another v. Smt.Santa Bala Debnath and
others reported in AIR 11971 SC 1028
9. T.D.Gopalan v. The Commissioner of Hindu Religious
and Charitable Endowments, Madras reported in AIR
1972 SC 1716
10. Gangadharan v. Janardhana Mallan and others
reported in AIR 1996 SC 2127
11. Mukesh Kumar and others v. Col.Harbans Waraiah
and others reported in AIR 2000 SC 172
12. Nirmala Anand v. Advent Corporation (P) Ltd. and
others reported in AIR 2002 SC 3396
13. K. Prakash vs. B.R.Sampath Kumar unreported
judgment of Supreme Court in Civil Appeal No.9047
of 2014
14. P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi AIR
2007 SC 1256
15. P.C. Varghese v. Devaki Amma Balambika Devi AIR
2006 SC 145
16. P.D'souza v. Shondrilo Naidu AIR 2004 SC 4472
17. Gobind Ram v. Gian Chand AIR 2000 SC 3106
18. S.V.R.Mudaliar v. Rajabu F. Buhari AIR 1995 SC 1607
19. Kuldip Gandotra v. Shailendra Nath Endlay AIR
2007 DELHI 1
20. Dalip Singh v. Ram Nath and another AIR 2002
HIMACHAL PRADESH 106
21. R Nagpal v Deviram AIR 2002 HIMACHAL PRADESH
166
22. N.Satyanarayana v. Vedprakash Dusaj and others AIR
2003 ANDHRA PRADESH 385
23. Kochuthampi Rawther Hassankutty v.
Peerumuhammed Puthumaliyar Rawther AIR 2000
KERALA 17
24. Babulal Agrawal v. Smt.Jyoti Shrivastava AIR 2000
MADHYA PRADESH 83
25. K.Venkoji Rao v. M.Abdul Khuddur Kureshi
26. H.P.Pyarejan v. Dasappa 2006(3) BCR 668
(i) On the other hand, Mr.Sathe the learned counsel
for the respondent invited my attention to the document of
agreement Ex.51 and took the court through various
clauses therein. He submitted that the property is
admittedly joint family property in which there are five
shareholders. Three sons of the deceased defendant
Ramchandra were major who were the coparceners
in the
Suit estate. Ex.51 no where shows any recital that
Ramchandra was specifically authorized by all the adult
sons who were the coparceners
to sell the estate for
whatever purpose. The deceased respondent therefore did
not act as a Karta on behalf of the joint family for executing
Ex.51 but on his own he acted limited to his wisdom to
obtain some loan amount from the plaintiffs appellants and
mortgaged the suit property by way of security for loan
under Ex.51.
(ii) He then submitted that the attesting witnesses
who are his sons can in no case be termed as a consenting
party for executing the agreement sale agreement Ex.51.
Had it been so, they would have signed with their father
Ramchandra as persons agreeing to sell the suit property.
According to Mr.Sathe the fact that the appellants also did
not insist for their signature along with Ramchandra but
were satisfied with their signature as attesting witnesses is
enough to indicate that even the appellants were aware
about the nature of transaction under the agreement as the
one for lending loan.
(iii) The learned counsel for the respondent then
argued that the lower appellate court has recorded the
findings of facts and has rightly found that the deceased
Ramchandra/defendant had no authority to act for the
joint family to agree to sell the suit property under Ex.51
which was admittedly the joint family property.
(iv) Mr.Sathe then argued that issuance of public
notice by Ex.67 first and then filing of the Special Civil Suit
No.56 of 1984 by sons for partition was an indicator that
the sons were not at all agreeable to the sale proposed by
Ramchandra, their father under Ex.51. The counsel for the
respondent submitted that as a matter of fact the
respondents had decided to sell another property namely
Gut No.55 for repayment of loan and which was actually
sold on 15th March, 1982 for Rs.40,000/from
which they
repaid the entire loan amount of the bank and released the
suit property. This conduct on the part of the respondent
clearly indicated that by no means the respondent wanted
to sell the suit property much less under the agreement
Ex.51 to the appellants.
(v) The learned counsel for the respondent submitted that
right from the beginning the respondent had specifically
stated and in particular in reply to the notice sent by the
appellants that there was no other property left for the
family except for the suit property and therefore hardship
would be caused to the respondent and plaintiff would
have unfair advantage over the defendant.
(vi) The lower appellate court therefore, recorded the
finding of fact and found that the agreement Ex.51 could
be enforced only to the extent of the share of the deceased
Ramchandra and that is why it made decree by giving some
relief to the appellants plaintiffs. The discretion exercised
by the lower appellate court in the matter of decree for
specific performance of contract cannot be disturbed or reexamined
or reanalyzed
in the second appellate
jurisdiction.
(vii) The loan amount in total was Rs.14588/while
under clause 12 of the agreement the appellant was
supposed to make payment of the entire loan amount but
admittedly the entire loan amount was not paid by the
appellants and on the contrary, the appellants remained
satisfied with making payment of some amount.
(viii) Counsel for the respondent submitted that even
the amount that was paid in the bank was only Rs.5000
and nothing more than against the total amount of loan
liability of Rs.14300/.
Counsel for the respondent relied on
the following decisions. He finally prayed for dismissal of
the Appeal.
5 Counsel for the respondent relied on the following decisions:
1. Dharmarao Sidhappa Shetgar (D) L.Rs. v. Gopal
Shriniwas Shirsikar and Ors. reported in AIR 2006
BOMBAY 228
2. Nathu Lal and others vs. Mt.Gomti and others
reported in AIR 1940 Privy Council 160
3. Loon Karan Sethia etc. v. Mr.Ivan E. John and others
reported in AIR 1977 SC 336
4. S.Perumal Reddiar v. Bank of Baroda and others
reported in AIR 1981 Madras 180
5. Chamela Ram vs. Balwant Singh and others reported
in 1999 CJ (P & H) 126
6. Arumugam v. M.S.Narasaiah reported in AIR 1998
MADRAS 67
6 Upon perusal of the judgment of the lower appellate court and
as argued by the counsel for both the parties it is seen that the lower
appellate court failed to frame the points for determination but went
ahead in writing the judgment. This court therefore at the beginning
asked the counsel for rival parties to address the court on facts as
well on evidence and the questions of law since the litigation pertains
to the year 1982 and this court thought that it would be unjust to
send the appeal for hearing before the lower appellate court.
7 Counsel for the parties therefore agreed to advance arguments
on facts and law both and this court in exercise of power under
section 103 of the Code of Civil Procedure accordingly decided to to
ahead with the instant Second Appeal for making the decision on
merits thereon rather than remanding the appeal to the lower
appellate court.
CONSIDERATION
8 Upon hearing the learned counsel for the rival parties and
upon perusal of the entire record and judgments and the reasons
recorded by the courts below at length, I reframe
the following
substantial questions of law which arise for my consideration:
Questions
(a) Whether the lower appellate court committed an error in
holding that the deceased Ramchandra had no authority to act as a
Karta on behalf of the joint family and execute the agreement of sale
Ex.51 for legal necessity in favour of the appellants plaintiffs which
would bind the members of the family including the sons and his
wife?
Answer – No
(b) Whether the agreement Ex.51 executed by the deceased
Ramchandra was executed with the express or implied consent of all
the members of the Joint Family, in that the two sons of defendant
Ramchandra had signed as attesting witness on Ex.51 and one son
and his wife had not signed the same?
Answer – No
(c) Whether the lower appellate court committed an error in not
making the decree for specific performance of the contract in entirety
i.e. for the entire suit field but restricting the same only to the extent
of 1/5th share of the deceased Ramchandra?
Answer No
(d) Whether the offer made by the appellants to make the payment
of additional compensation to the respondent for decree for specific
performance of contract in respect of the entire suit estate can be
accepted?
Answer No
(e) What order on Crossobjection
(ST). No.22235 of 2009 ?
Answer – (i) Second Appeal is dismissed.
(ii) Crossobjection
is dismissed.
9 As to question nos.(a) and (b), the following facts are not in
dispute:
(I) That the defendant Ramchandra the deceased was the
father who had three sons and wife and admittedly the suit
property was the joint family property held by him with his
children and wife. The three sons were adults and admittedly
had interest in the undivided suit property. Ramchandra had
obtained loan on the suit property from Nasik District Land
Development Bank for sinking well but suffered loss and could
not repay the loan. As on the date of the agreement of sale
Ex.51 dated 1st August, 1981 the outstanding loan amount
against him was Rs.14300/.
It is the case of the appellants that
Ramchandra agreed to sell the suit property to them (plaintiffs)
for clearing the entire loan liability over the suit property and
that is why he entered into an agreement of sale with the
appellants and he alone executed the agreement Ex.51. Clause
5 of the Ex.51 shows that appellants had agreed to make
payment of the entire outstanding loan. Ramchandra alone had
put his thumb impression on the agreement while his two sons
Dattu and Shankar had signed as attesting witness to the
agreement while the third son Yeshwant had not signed the
agreement so also Ramchandra's wife.
(II) Clause 4 of the agreement in all details show the nature
of the property as the ancestral property. Clause 12 of the
agreement shows the names of three adult sons Dattu, Shankar
and Yashwant and the last sentence therein shows that
signatures of the other adult members of the family will be
obtained on the sale deed. There is nothing in the agreement
Ex.51 to show that though it was drafted by an Advocate with
15 clauses and 5 pages as to the amount of total loan liability
with interest on the date of agreement of sale. Clause 2 of the
agreement shows that the amount of Rs.5000/was
written later
on in hand writing as Rs.7300/and
payment to be made in the
bank again was written in hand writing as against the entire
agreement which was typewritten.
Further clause 12 shows
that money was required for expenditure on agriculture and
family maintenance but again the words 'for agreement of the
loan of the bank' were put in hand writing. It is thus clear that
Ex.51 does not support the case of the appellants that they knew
about the entire loan liability of Rs.14300/on
the date of the
agreement before agreeing to purchase the suit property for
discharging the loan liability of the defendant. The appellants
remain satisfied, or to put in other words did not insist for
signatures of his two sons Dattu and Shankar along with
Ramchandra as the persons agreeing to sell the joint family
property, with their signatures as attesting witnesses only when
the appellants were fully aware that the property was ancestral
property and was held by defendant Ramchandra jointly with his
adult sons and his wife. These taletelling
documentary
evidence on the contrary shows that the appellants knew that
the two sons Dattu and Shankar and the third son Yashwant did
not at all want to sell the suit property under Ex.51. In other
words the appellants can be posted with the knowledge that
Ramchandra and his family members with adult sons did not
have any deliberations jointly nor was any unanimous decision
by them to agree to sell the suit property for the legal necessity
to the appellants by Ex.51. The appellants can also be posted
with further knowledge that there was no authority in the
defendant Ramchandra to agree to sell the suit property under
Ex.51. The appellants did not at all explain as to why the
appellants did not insist for signatures of Dattu and Shankar on
the agreement rather than having them as attesting witnesses on
Ex.51, which they learned that the suit property was joint family
property.
(III) It is then seen from the record that the amount of
Rs.5000/was
paid by the appellants on 3rd September, 1981 to
the bank directly and the receipts are duly proved on record.
But then there is no evidence on record to show that the said
amount of Rs.5000/deposited
with the bank directly was
besides the amount of Rs.7300/or
out of Rs.7300/only.
The
only inference in the light of the above facts and evidence that
can be drawn is that the appellants had paid the amount under
the agreement to the defendant Ramchandra by way of loan and
obtained the agreement Ex.51 from him and none of the other
coparceners
i.e. three sons had agreed to sell the suit property
and that on the contrary even those two sons did not want to
sign the agreement nor wanted to sell the suit property. It must
therefore be held that the agreement Ex.51 was unilaterally
executed by defendant Ramchandra without any authority from
the other adult coparceners
so as to bind them. The submission
made by the learned counsel for the appellants that respondent
acting as Karta of the family was entitled to agree to sell the suit
property to the appellants for legal necessity in order to save the
suit field from being auctioned in view of the pressure from the
bank does not appeal to me. The authority in the Karta would
not be absolute particularly when as pointed out earlier except
Ramchandra none agreed to sell the suit property and on the
contrary there was a resistance from the sons. The fact that
there was resistance from them has been discussed by the lower
appellate court and instead of repeating the reasons it will be
suffice if I quote paragraph 3 from the lower appellate court
judgment which reads thus:
“3. The defendantsappellants
have submitted that at
the time of execution of agreement for sale Exh.51 no
doubt he had stated that he was acting as karta of the
family at that time, however it is specifically stated in
clause 12 of agreement to sale Exh.51 that he would
obtain the signature of the adult members of his
family upon the agreement to sale and in case the
saledeed
is executed, the signatures of adult members
of said family would be obtained on such saledeed,
so
as to bind all the adult members of his family for the
sale of the disputed land. The suit has been filed in
the court on 14.4.1982. The agreement to sale Exh.51
has been executed on 1st September, 1981 and prior to
filing of the present suit, adult members of the family
of the defendant has given a public notice in daily
newspaper 'Gavakari' dated 29.3.1982 which is filed
under Exh.67 and the said public notice is dated 2431982
stating that disputed land which is situated at
Wadgaon, Tal. and Dist.Nasik i.e. Gat No.368 are 4
Hectors, 06 Ares, land revenue of Rs.312Ps.
they
have shares in the above stated stipulated land of the
narrators of the public notice namely Yeshwant
Ramchandra Kasbe and others and said Yeshwant
Kasbe had made intention to separate from the joint
family property by such notice. Such notice is also
explicitly stated in clause no.12 of the agreement to
sale Exh.51 to carry out the said intention to separate,
said Yeshwant Ramchandra Kasbe filed a suit for
partition and separate possession, that is at Exh.103.
It is stated that said suit has been submitted on 2011982.”
(IV) In the case of Balmukand v. Kamla Wati and others
reported in AIR 1964 SC 1385 while citing the judgment of
Patna High Court in the case of Sital Prasad Singh and others v.
Ajablal Mander and others reported in AIR 1939 Patna 370, the
Supreme Court stated thus in paragraph 7, 9 and 10 as follows:
“7. The next case is Sital Prasad Singh v. Ajablal
Mander, ILR 18 Pat 306: (AIR 1939 Pat 370). That
was a case in which one of the questions which arose
for consideration was the power of a manager to
alienate part of the joint family property for the
acquisition of new property. In that case also the test
applied to the transaction entered into by a manager
of a joint Hindu family was held to be the same, that
is, whether the transaction was one into which a
prudent owner would enter in the ordinary course of
management in order to benefit the estate. Following
the view taken in the Allahabad case the learned
Judges also held that the expression "benefit of the
estate" has a wider meaning than mere compelling
necessity and is not limited to transactions of a purely
defensive nature. In the course of his judgment
Harries C.J. observed at p. 311 (of ILR Pat): (at p.372
of AIR):
"....... the karta of a joint Hindu family
being merely a manager and not an
absolute owner, the Hindu law has, like
other systems of law, placed certain
limitations upon his power to alienate
property which is owned by the joint
family. The Hindu lawgivers,
however,
could not have intended to impose any
such restriction on his power as would
virtually disqualify him from doing
anything to improve the conditions of the
family. The only reasonable limitation
which can be imposed on the karta is that
he must act with prudence, and prudence
implies caution as well as foresight and
excludes hasty, reckless and arbitrary
conduct."
After observing that the transaction entered
into by a manager should not be of a
speculative nature the learned Chief Justice
observed :
"In exceptional circumstances, however, the
court will uphold the alienation of a part of
the joint family property by a karta for the
acquisition of new property as, for
example, where all the adult members of
the joint family with the knowledge
available to them and possessing all the
necessary information about the means and
requirements of the family are convinced
that the proposed purchase of the new
property is for the benefit of the estate."
These observations make it clear that
where adult members are in existence the
judgment is to be not that of the manager
of the family alone but that of all the adult
members of the family, including the
manager. In the case before us all the
brothers of Pindidas were adults when the
contract was entered into. There is no
suggestion that they agreed to the
transaction or were consulted about it or
even knew of the transaction. Even,
therefore, if we hold that the view
expressed by the learned Chief Justice is
right it does not help the plaintiff because
the facts here are different from those
contemplated by the learned Chief Justice.
The other Judge who was a party to that
decision, Manoharlal J., took more or less
the same view.
(9) Thus, as we have already stated, that
for a transaction to be regarded as of
benefit to the family it need not be of
defensive character so as to be binding on
the family. In each case the court must be
satisfied from the material before it that it
was in fact such as conferred or was
reasonably expected to confer benefit on
the family at the time it was entered into.
We have pointed out that there is not even
an allegation in the plaint that the
transaction was such as was regarded as
beneficial to the family when it was
entered into by Pindidas. Apart from that
we have the fact that here the adult
members of the family have stoutly resisted
the plaintiff's claim for specific
performance and we have no doubt that
they would not have done so if they were
satisfied that the transaction was of benefit
to the family. It may be possible that the
land which was intended to be sold had
risen in value by the time the present suit
was instituted and that is why the other
members of the family are contesting the
plaintiff's claim. Apart from that the adult
members of the family are well within their
rights in saying that no part of the family
property could be parted with or agreed to
be parted with by the manager on the
ground of alleged benefit to the family
without consulting them. Here, as already
stated, there is no allegation of any such
consultation.
(10) In these circumstances we must hold
that the courts below were right in
dismissing the suit for specific
performance. We may add that granting
specific performance is always in the
discretion of the court and in our view in a
case of this kind the court would be
exercising its discretion right by refusing
specific performance.”
(V) In my opinion, the above legal position is apt in the fact
situation present in this case. It is anxious to note that though
the appellants fully knew that the suit property was ancestral
property and three sons and wife of Ramchandra had interest
therein and when it was the case of the appellants that the
property was sold out for legal necessity none of the sons were
even joined as a party to the suit which is an indicator of the fact
that the appellants very well knew that he would not be able to
make any claim against all the three sons and would be able to
claim only against the defendant Ramchandra, who alone was
the defendant.
To sum up question nos.(a) and (b) therefore will have
to be answered in the negative.
10 As to question nos.(c):
Admittedly, the respondent has not put to challenge the
judgment and decree made by the lower appellate court in part
i.e. to the extent of 1/5th share of Ramchandra and thus said part
Mohite 24/26
::: Downloaded on - 04/03/2015 16:48:38 :::
Bombay High Court
sa563-92.doc
of the decree has become final. In view of my answer to
question nos.(a) and (b) the lower appellate court was right in
refusing the decree for specific performance of contract of the
entire suit property. Further in view of the fact that the
respondent did not put to challenge the decree made by the
lower appellate court in part in favour of the appellants,
question no.(c) will have to be answered in the negative.
11 As to question no.(d):
It is true that the appellants have made an offer to make
payment of additional compensation to the respondent for asking for
a decree for specific performance for the entire estate. However,
since I have answered question nos.(a), (b) and (c) in the negative
and since the other members of the family of Ramchandra could not
be compelled to execute the sale deed, this question also will have to
be answered in the negative.
12 As to question no.(e):
In view of the above answers to question nos.(a), (b) and (c),
the Crossobjection
will have to be dismissed.
13 Various judgments cited by the learned counsel for the parties
before me in the facts of the present case will have no application
and hence, it is not necessary for me to consider each and every
judgment. To sum up the following order is passed.
Mohite 25/26
::: Downloaded on - 04/03/2015 16:48:38 :::
Bombay High Court
sa563-92.doc
ORDER
(i) Second Appeal No.563 of 1992 is dismissed.
(ii) Cross Objection (ST). No.22235 of 2009 is dismissed.
(iii) No order as to costs.
(iv) The learned counsel for the appellants submits that the
interim order is operating and same may be continued for
another eight weeks. Request is opposed by Mr.Sathe the
learned counsel for the respondent. However, I continue
interim order for another eight weeks.
( A.B. CHAUDHARI, J. )
Mohite 26/26
::: Downloaded on - 04/03/2015 16:48:38 :::
situation present in this case. It is anxious to note that though
the appellants fully knew that the suit property was ancestral
property and three sons and wife of Ramchandra had interest
therein and when it was the case of the appellants that the
property was sold out for legal necessity none of the sons were
even joined as a party to the suit which is an indicator of the fact
that the appellants very well knew that he would not be able to
make any claim against all the three sons and would be able to
claim only against the defendant Ramchandra, who alone was
the defendant.
To sum up question nos.(a) and (b) therefore will have
to be answered in the negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.563 OF 1992
WITH
CROSS OBJECTION (ST). NO.22235 OF 2009
IN
SECOND APPEAL NO.563 OF 1992
Shri Kashinath Rajaram Kasabe and Ors. .. Appellants
Vs.
Shri Ramchandra Tukaram Kasabe,
CORAM: A.B.CHAUDHARI, J.
PRONOUNCED ON: 8TH OCTOBER, 2014
Citation;2015(1)ALLMR753
Read original judgment here; click here
1 Being aggrieved by the judgment and decree dated 26th
August, 1992 in Civil Appeal No.512 of 1986 passed by 7th Additional
District Judge, Nasik by which the appeal was partly allowed and the
decree for execution of sale deed in favour of the appellants plaintiffs
in Special Civil Suit No.63 of 1982 passed on 27th June, 1986 by Joint
Civil Judge, Senior Division, Nasik was modified only to the extent of
1/5th share of deceased Ramchandra Tukaram Kasbe, the present
Appeal was filed by the partly unsuccessful plaintiffs.
The facts of the case are as follows:
2 The appellants plaintiffs who are the original plaintiffs filed
Special Civil Suit No.63 of 1982 and stated that the suit land Gut
No.368 admeasuring 4H 69.4R belonging to the defendant
Ramchandra Tukaram Kasbe was agreed to be sold to the plaintiffs by
him for a total consideration of Rs.24,200/.
The defendant
Ramchandra had mortgaged the land with Nasik District Coop.
Land
Development Bank for sinking the well in Gut No.109 in the year
1970 but he could not repay the loan and the bank had threatened to
put his land to auction in the year 1981. Respondent defendant had
no other option than to dispose of the suit property to repay the loan
and that is why the suit land was put to sale. Upon negotiations, the
price was fixed and earnest amount of Rs.7300/was
agreed to be
paid and the agreement was executed on 1st August, 1981. The
possession of the suit land was delivered pursuant to the said
agreement dated 1st August 1981 to the appellants plaintiffs along
with the standing crops. The sale deed was to be executed within
one year by making payment of the entire loan outstanding amount
to the bank. The respondent Ramchandra was Karta of Hindu Joint
Family and had agreed to sell the suit land for the benefit of Joint
Family. The plaintiffs paid Rs.7300/to
defendant and deposited
Rs.5000.65ps. with the Land Development Bank on 3.9.80 towards
the outstanding loan. The plaintiffs were always ready and willing to
perform their part of the contract but defendant changed his mind
and did not perform his part of the contract and avoided to execute
the sale deed. Not only that the defendant refused to furnish
information as to the outstanding loan amount and finally refused to
execute the sale deed in the month of March 1982. The appellants
then came to know that defendant had in fact repaid the whole
amount to the bank and thus, committed breach of the contract and
it was essential to file the suit in question. The suit was resisted by
the defendant by filing written statement at Ex.16. The defendant
admitted about the loan on the suit property and the insistence of the
bank for repayment. He also admitted execution of the document of
agreement dt.1st August, 1981 in favour of the plaintiffs. But he
further submitted that he was in financial difficulty due to the
pressure from the bank to repay the loan amount and therefore,
asked the plaintiffs for some loan amount who agreed to give loan
due to friendly relations but the plaintiffs wanted the document by
way of security for loan which was executed by Ramchandra alone.
The transaction was thus, a loan transaction not to be acted upon and
the document was to be destroyed. The defendant respondent being
in disturbed state of mind executed the agreement Ex.51 due to
helplessness. He denied the delivery of possession so also the receipt
of amount of Rs.7300/and
that the amount of Rs.5000/was
to be
deposited in the bank on the next working day after the agreement
and the amount of Rs.2300/was
to be paid to Ambadas Ramu Ugle.
The amount of Rs.2300/was
not paid to Ambadas and the plaintiffs
straightway deposited Rs.5000/out
of Rs.7300/in
the bank. The
payment of Rs.5000/alleged
by the plaintiff was the same amount
and not separate from the amount of Rs.7300/.
The plaintiffs did
not pay the amount of the entire amount of the loan in the bank and
it was the defendant who was required to dispose of his other field
property and make payment therefrom of the entire loan amount on
7th April, 1982. It was thus the plaintiffs who committed the breach
of contract and therefore he made counter claim. The defendant also
took a stand in the written statement that the suit property was
ancestral property and could not have been agreed to be sold by him
alone since he had only 1/5th share in the suit property. The
transaction was merely a loan transaction and the appellants
plaintiffs fully knew about the joint nature of the property. He
therefore, resisted the decree for specific performance. The trial
Judge in all framed 29 issues and finally decreed the suit for specific
performance of the contract in respect of entire suit property, by
judgment and decree dt.27th June, 1986. On appeal, the learned
lower appellate court partly allowed defendant's appeal and granted
decree in favour of the plaintiffs to the extent only of 1/5th share
only of the defendant Ramchandra. Being aggrieved by the said
decree of the lower appellate court, the instant Second Appeal was
filed by the plaintiffs in this court.
ARGUMENTS:
3 In support of the appeal, the learned counsel for the appellant
made the following submissions:
(i) That the lower appellate court committed error in
holding that the respondent Ramchandra had no authority
to agree to sell the suit property in entirety to the
appellants plaintiffs. Even from the case pleaded by the
respondent defendant and the evidence on record, it was
clearly established that the suit property was agreed to be
sold for the legal necessity namely the financial pressure
from the land development bank which had been
pressurizing him for making repayment of the loan that was
advanced.
(ii) Though the legal necessity for sale of the suit
property to the appellants plaintiffs was duly established
the lower appellate court erred in refusing the decree for
the entire suit property. The deceased Ramchandra acted
as a 'karta' of the family and for saving the suit land from
being auctioned by the land development bank he agreed
to sell the suit property to the appellants and that was
obviously for the benefit of the family and the estate.
(iii) In the light of the several decisions and the legal
position that even if the other members/coparceners
in the
joint hindu family are adults, the Manager or the Karta of
the family is entitled to sell the suit property for the benefit
of the family or for the benefit of the estate. In the instant
case the need was writ large namely, to save the suit
property and therefore the agreement Ex.51 by
Ramchandra was executed acting as Karta of the family.
The lower appellate court committed a grave error in
ignoring the said aspect. Not only that the two adult sons
of Ramchandra in fact had signed the agreement as
attesting witness and therefore their consent for sale must
be inferred. The lower appellate court however ignored all
these aspects of the matter. It was only the third son
Yashwant who had not signed the agreement and the wife
of Ramchandra but then that would make no difference if
Ramchandra had decided to sell the suit property with the
consent of the other two sons and would bind the family.
(iv) The lower appellate court committed an error in
reversing the finding of fact and the decree made by the
trial court which held that the defendant Ramchandra and
his sons had deliberately with a view to thwart the claim of
the appellant issued public notice dated 29th March, 1982
Ex.67 and had instituted a Special C.S. No.56 of 1984 for
partition. That was a ploy to defeat the claim of the
appellant since the said Civil Suit No.56 of 1984 was
ultimately dismissed on 20th January, 1992. Thus,
defendant Ramchandra and his sons had changed their
mind and decided to breach the agreement by taking the
appellants plaintiffs for a ride.
(v) Though period of execution of sale as per Ex.51
was one year the respondent did not wait for the said
period but deliberately made repayment of the entire loan
amount themselves in order to defeat the legal remedy of
the appellants.
(vi) The lower appellate court did not frame any point
for determination in the impugned judgment contrary to
the procedure prescribed by Civil Procedure code and
therefore, this court may think of making remand order to
the lower appellate court.
(vii) Continuing the submissions the learned counsel
for the appellants submitted that the lower appellate court
committed an error restricting the decree for specific
performance only to the extent of 1/5th share of defendant
Ramchandra ignoring the fact that under Ex.51 the entire
suit property was agreed to be sold due to legal necessity.
(viii) The lower appellate court could not make the
payment of additional compensation which the appellants
are even now ready to offer in the light of the various
decisions of the Apex Court.
(ix) The lower appellate court committed an error in
ignoring the fact that the appellants were found in
possession of the suit property and paid substantial
amount.
(x) The lower appellate court erred in not applying
the law correctly as to the alienation of the property acting
as Karta of the family for the benefit of the estate or for the
benefit of the family.
4 Counsel for the appellants relied on the following decisions.
1. Satya Jain (Dead) through LRs. and others vs. Anis
Ahmed Rushdie (Dead) through LRs. and others
reported in (2013) 8 SCC 131
2. Shankarlal Ramprasad Ladha (died by L.Rs.) v. Vasant
Chandidasrao Deshmukh reported in 2009 (2) ALL
MR 93
3. Ramnath Rambhau Gujar (dead through LR.s) v.
Shamrao Gopal Petkar & Ors. reported in 2010(5)
ALL MR 1
4. Ramchandra Chunilal Dagad (deceased by LR.s) &
Anr. v. Vasant Bansi Somwanshi & Ors. reported in
2010 (5) ALL MR 218
5. The Designers Coop.
Hsg.Soc. vs. Udhav s/o.
Murlidhar Rasne & Ors. reported in 2011 (1) ALL MR
346
6. Jagannath Rangnath Chavan v. Suman Sahebrao
Ghawte & Ors. reported in 2013 (6) BCR 62
7. Brij Narain vs. Mangla Prasad and Others reported in
1923 Indian Appeals 129
8. Smt.Rani and another v. Smt.Santa Bala Debnath and
others reported in AIR 11971 SC 1028
9. T.D.Gopalan v. The Commissioner of Hindu Religious
and Charitable Endowments, Madras reported in AIR
1972 SC 1716
10. Gangadharan v. Janardhana Mallan and others
reported in AIR 1996 SC 2127
11. Mukesh Kumar and others v. Col.Harbans Waraiah
and others reported in AIR 2000 SC 172
12. Nirmala Anand v. Advent Corporation (P) Ltd. and
others reported in AIR 2002 SC 3396
13. K. Prakash vs. B.R.Sampath Kumar unreported
judgment of Supreme Court in Civil Appeal No.9047
of 2014
14. P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi AIR
2007 SC 1256
15. P.C. Varghese v. Devaki Amma Balambika Devi AIR
2006 SC 145
16. P.D'souza v. Shondrilo Naidu AIR 2004 SC 4472
17. Gobind Ram v. Gian Chand AIR 2000 SC 3106
18. S.V.R.Mudaliar v. Rajabu F. Buhari AIR 1995 SC 1607
19. Kuldip Gandotra v. Shailendra Nath Endlay AIR
2007 DELHI 1
20. Dalip Singh v. Ram Nath and another AIR 2002
HIMACHAL PRADESH 106
21. R Nagpal v Deviram AIR 2002 HIMACHAL PRADESH
166
22. N.Satyanarayana v. Vedprakash Dusaj and others AIR
2003 ANDHRA PRADESH 385
23. Kochuthampi Rawther Hassankutty v.
Peerumuhammed Puthumaliyar Rawther AIR 2000
KERALA 17
24. Babulal Agrawal v. Smt.Jyoti Shrivastava AIR 2000
MADHYA PRADESH 83
25. K.Venkoji Rao v. M.Abdul Khuddur Kureshi
26. H.P.Pyarejan v. Dasappa 2006(3) BCR 668
(i) On the other hand, Mr.Sathe the learned counsel
for the respondent invited my attention to the document of
agreement Ex.51 and took the court through various
clauses therein. He submitted that the property is
admittedly joint family property in which there are five
shareholders. Three sons of the deceased defendant
Ramchandra were major who were the coparceners
in the
Suit estate. Ex.51 no where shows any recital that
Ramchandra was specifically authorized by all the adult
sons who were the coparceners
to sell the estate for
whatever purpose. The deceased respondent therefore did
not act as a Karta on behalf of the joint family for executing
Ex.51 but on his own he acted limited to his wisdom to
obtain some loan amount from the plaintiffs appellants and
mortgaged the suit property by way of security for loan
under Ex.51.
(ii) He then submitted that the attesting witnesses
who are his sons can in no case be termed as a consenting
party for executing the agreement sale agreement Ex.51.
Had it been so, they would have signed with their father
Ramchandra as persons agreeing to sell the suit property.
According to Mr.Sathe the fact that the appellants also did
not insist for their signature along with Ramchandra but
were satisfied with their signature as attesting witnesses is
enough to indicate that even the appellants were aware
about the nature of transaction under the agreement as the
one for lending loan.
(iii) The learned counsel for the respondent then
argued that the lower appellate court has recorded the
findings of facts and has rightly found that the deceased
Ramchandra/defendant had no authority to act for the
joint family to agree to sell the suit property under Ex.51
which was admittedly the joint family property.
(iv) Mr.Sathe then argued that issuance of public
notice by Ex.67 first and then filing of the Special Civil Suit
No.56 of 1984 by sons for partition was an indicator that
the sons were not at all agreeable to the sale proposed by
Ramchandra, their father under Ex.51. The counsel for the
respondent submitted that as a matter of fact the
respondents had decided to sell another property namely
Gut No.55 for repayment of loan and which was actually
sold on 15th March, 1982 for Rs.40,000/from
which they
repaid the entire loan amount of the bank and released the
suit property. This conduct on the part of the respondent
clearly indicated that by no means the respondent wanted
to sell the suit property much less under the agreement
Ex.51 to the appellants.
(v) The learned counsel for the respondent submitted that
right from the beginning the respondent had specifically
stated and in particular in reply to the notice sent by the
appellants that there was no other property left for the
family except for the suit property and therefore hardship
would be caused to the respondent and plaintiff would
have unfair advantage over the defendant.
(vi) The lower appellate court therefore, recorded the
finding of fact and found that the agreement Ex.51 could
be enforced only to the extent of the share of the deceased
Ramchandra and that is why it made decree by giving some
relief to the appellants plaintiffs. The discretion exercised
by the lower appellate court in the matter of decree for
specific performance of contract cannot be disturbed or reexamined
or reanalyzed
in the second appellate
jurisdiction.
(vii) The loan amount in total was Rs.14588/while
under clause 12 of the agreement the appellant was
supposed to make payment of the entire loan amount but
admittedly the entire loan amount was not paid by the
appellants and on the contrary, the appellants remained
satisfied with making payment of some amount.
(viii) Counsel for the respondent submitted that even
the amount that was paid in the bank was only Rs.5000
and nothing more than against the total amount of loan
liability of Rs.14300/.
Counsel for the respondent relied on
the following decisions. He finally prayed for dismissal of
the Appeal.
5 Counsel for the respondent relied on the following decisions:
1. Dharmarao Sidhappa Shetgar (D) L.Rs. v. Gopal
Shriniwas Shirsikar and Ors. reported in AIR 2006
BOMBAY 228
2. Nathu Lal and others vs. Mt.Gomti and others
reported in AIR 1940 Privy Council 160
3. Loon Karan Sethia etc. v. Mr.Ivan E. John and others
reported in AIR 1977 SC 336
4. S.Perumal Reddiar v. Bank of Baroda and others
reported in AIR 1981 Madras 180
5. Chamela Ram vs. Balwant Singh and others reported
in 1999 CJ (P & H) 126
6. Arumugam v. M.S.Narasaiah reported in AIR 1998
MADRAS 67
6 Upon perusal of the judgment of the lower appellate court and
as argued by the counsel for both the parties it is seen that the lower
appellate court failed to frame the points for determination but went
ahead in writing the judgment. This court therefore at the beginning
asked the counsel for rival parties to address the court on facts as
well on evidence and the questions of law since the litigation pertains
to the year 1982 and this court thought that it would be unjust to
send the appeal for hearing before the lower appellate court.
7 Counsel for the parties therefore agreed to advance arguments
on facts and law both and this court in exercise of power under
section 103 of the Code of Civil Procedure accordingly decided to to
ahead with the instant Second Appeal for making the decision on
merits thereon rather than remanding the appeal to the lower
appellate court.
CONSIDERATION
8 Upon hearing the learned counsel for the rival parties and
upon perusal of the entire record and judgments and the reasons
recorded by the courts below at length, I reframe
the following
substantial questions of law which arise for my consideration:
Questions
(a) Whether the lower appellate court committed an error in
holding that the deceased Ramchandra had no authority to act as a
Karta on behalf of the joint family and execute the agreement of sale
Ex.51 for legal necessity in favour of the appellants plaintiffs which
would bind the members of the family including the sons and his
wife?
Answer – No
(b) Whether the agreement Ex.51 executed by the deceased
Ramchandra was executed with the express or implied consent of all
the members of the Joint Family, in that the two sons of defendant
Ramchandra had signed as attesting witness on Ex.51 and one son
and his wife had not signed the same?
Answer – No
(c) Whether the lower appellate court committed an error in not
making the decree for specific performance of the contract in entirety
i.e. for the entire suit field but restricting the same only to the extent
of 1/5th share of the deceased Ramchandra?
Answer No
(d) Whether the offer made by the appellants to make the payment
of additional compensation to the respondent for decree for specific
performance of contract in respect of the entire suit estate can be
accepted?
Answer No
(e) What order on Crossobjection
(ST). No.22235 of 2009 ?
Answer – (i) Second Appeal is dismissed.
(ii) Crossobjection
is dismissed.
9 As to question nos.(a) and (b), the following facts are not in
dispute:
(I) That the defendant Ramchandra the deceased was the
father who had three sons and wife and admittedly the suit
property was the joint family property held by him with his
children and wife. The three sons were adults and admittedly
had interest in the undivided suit property. Ramchandra had
obtained loan on the suit property from Nasik District Land
Development Bank for sinking well but suffered loss and could
not repay the loan. As on the date of the agreement of sale
Ex.51 dated 1st August, 1981 the outstanding loan amount
against him was Rs.14300/.
It is the case of the appellants that
Ramchandra agreed to sell the suit property to them (plaintiffs)
for clearing the entire loan liability over the suit property and
that is why he entered into an agreement of sale with the
appellants and he alone executed the agreement Ex.51. Clause
5 of the Ex.51 shows that appellants had agreed to make
payment of the entire outstanding loan. Ramchandra alone had
put his thumb impression on the agreement while his two sons
Dattu and Shankar had signed as attesting witness to the
agreement while the third son Yeshwant had not signed the
agreement so also Ramchandra's wife.
(II) Clause 4 of the agreement in all details show the nature
of the property as the ancestral property. Clause 12 of the
agreement shows the names of three adult sons Dattu, Shankar
and Yashwant and the last sentence therein shows that
signatures of the other adult members of the family will be
obtained on the sale deed. There is nothing in the agreement
Ex.51 to show that though it was drafted by an Advocate with
15 clauses and 5 pages as to the amount of total loan liability
with interest on the date of agreement of sale. Clause 2 of the
agreement shows that the amount of Rs.5000/was
written later
on in hand writing as Rs.7300/and
payment to be made in the
bank again was written in hand writing as against the entire
agreement which was typewritten.
Further clause 12 shows
that money was required for expenditure on agriculture and
family maintenance but again the words 'for agreement of the
loan of the bank' were put in hand writing. It is thus clear that
Ex.51 does not support the case of the appellants that they knew
about the entire loan liability of Rs.14300/on
the date of the
agreement before agreeing to purchase the suit property for
discharging the loan liability of the defendant. The appellants
remain satisfied, or to put in other words did not insist for
signatures of his two sons Dattu and Shankar along with
Ramchandra as the persons agreeing to sell the joint family
property, with their signatures as attesting witnesses only when
the appellants were fully aware that the property was ancestral
property and was held by defendant Ramchandra jointly with his
adult sons and his wife. These taletelling
documentary
evidence on the contrary shows that the appellants knew that
the two sons Dattu and Shankar and the third son Yashwant did
not at all want to sell the suit property under Ex.51. In other
words the appellants can be posted with the knowledge that
Ramchandra and his family members with adult sons did not
have any deliberations jointly nor was any unanimous decision
by them to agree to sell the suit property for the legal necessity
to the appellants by Ex.51. The appellants can also be posted
with further knowledge that there was no authority in the
defendant Ramchandra to agree to sell the suit property under
Ex.51. The appellants did not at all explain as to why the
appellants did not insist for signatures of Dattu and Shankar on
the agreement rather than having them as attesting witnesses on
Ex.51, which they learned that the suit property was joint family
property.
(III) It is then seen from the record that the amount of
Rs.5000/was
paid by the appellants on 3rd September, 1981 to
the bank directly and the receipts are duly proved on record.
But then there is no evidence on record to show that the said
amount of Rs.5000/deposited
with the bank directly was
besides the amount of Rs.7300/or
out of Rs.7300/only.
The
only inference in the light of the above facts and evidence that
can be drawn is that the appellants had paid the amount under
the agreement to the defendant Ramchandra by way of loan and
obtained the agreement Ex.51 from him and none of the other
coparceners
i.e. three sons had agreed to sell the suit property
and that on the contrary even those two sons did not want to
sign the agreement nor wanted to sell the suit property. It must
therefore be held that the agreement Ex.51 was unilaterally
executed by defendant Ramchandra without any authority from
the other adult coparceners
so as to bind them. The submission
made by the learned counsel for the appellants that respondent
acting as Karta of the family was entitled to agree to sell the suit
property to the appellants for legal necessity in order to save the
suit field from being auctioned in view of the pressure from the
bank does not appeal to me. The authority in the Karta would
not be absolute particularly when as pointed out earlier except
Ramchandra none agreed to sell the suit property and on the
contrary there was a resistance from the sons. The fact that
there was resistance from them has been discussed by the lower
appellate court and instead of repeating the reasons it will be
suffice if I quote paragraph 3 from the lower appellate court
judgment which reads thus:
“3. The defendantsappellants
have submitted that at
the time of execution of agreement for sale Exh.51 no
doubt he had stated that he was acting as karta of the
family at that time, however it is specifically stated in
clause 12 of agreement to sale Exh.51 that he would
obtain the signature of the adult members of his
family upon the agreement to sale and in case the
saledeed
is executed, the signatures of adult members
of said family would be obtained on such saledeed,
so
as to bind all the adult members of his family for the
sale of the disputed land. The suit has been filed in
the court on 14.4.1982. The agreement to sale Exh.51
has been executed on 1st September, 1981 and prior to
filing of the present suit, adult members of the family
of the defendant has given a public notice in daily
newspaper 'Gavakari' dated 29.3.1982 which is filed
under Exh.67 and the said public notice is dated 2431982
stating that disputed land which is situated at
Wadgaon, Tal. and Dist.Nasik i.e. Gat No.368 are 4
Hectors, 06 Ares, land revenue of Rs.312Ps.
they
have shares in the above stated stipulated land of the
narrators of the public notice namely Yeshwant
Ramchandra Kasbe and others and said Yeshwant
Kasbe had made intention to separate from the joint
family property by such notice. Such notice is also
explicitly stated in clause no.12 of the agreement to
sale Exh.51 to carry out the said intention to separate,
said Yeshwant Ramchandra Kasbe filed a suit for
partition and separate possession, that is at Exh.103.
It is stated that said suit has been submitted on 2011982.”
(IV) In the case of Balmukand v. Kamla Wati and others
reported in AIR 1964 SC 1385 while citing the judgment of
Patna High Court in the case of Sital Prasad Singh and others v.
Ajablal Mander and others reported in AIR 1939 Patna 370, the
Supreme Court stated thus in paragraph 7, 9 and 10 as follows:
“7. The next case is Sital Prasad Singh v. Ajablal
Mander, ILR 18 Pat 306: (AIR 1939 Pat 370). That
was a case in which one of the questions which arose
for consideration was the power of a manager to
alienate part of the joint family property for the
acquisition of new property. In that case also the test
applied to the transaction entered into by a manager
of a joint Hindu family was held to be the same, that
is, whether the transaction was one into which a
prudent owner would enter in the ordinary course of
management in order to benefit the estate. Following
the view taken in the Allahabad case the learned
Judges also held that the expression "benefit of the
estate" has a wider meaning than mere compelling
necessity and is not limited to transactions of a purely
defensive nature. In the course of his judgment
Harries C.J. observed at p. 311 (of ILR Pat): (at p.372
of AIR):
"....... the karta of a joint Hindu family
being merely a manager and not an
absolute owner, the Hindu law has, like
other systems of law, placed certain
limitations upon his power to alienate
property which is owned by the joint
family. The Hindu lawgivers,
however,
could not have intended to impose any
such restriction on his power as would
virtually disqualify him from doing
anything to improve the conditions of the
family. The only reasonable limitation
which can be imposed on the karta is that
he must act with prudence, and prudence
implies caution as well as foresight and
excludes hasty, reckless and arbitrary
conduct."
After observing that the transaction entered
into by a manager should not be of a
speculative nature the learned Chief Justice
observed :
"In exceptional circumstances, however, the
court will uphold the alienation of a part of
the joint family property by a karta for the
acquisition of new property as, for
example, where all the adult members of
the joint family with the knowledge
available to them and possessing all the
necessary information about the means and
requirements of the family are convinced
that the proposed purchase of the new
property is for the benefit of the estate."
These observations make it clear that
where adult members are in existence the
judgment is to be not that of the manager
of the family alone but that of all the adult
members of the family, including the
manager. In the case before us all the
brothers of Pindidas were adults when the
contract was entered into. There is no
suggestion that they agreed to the
transaction or were consulted about it or
even knew of the transaction. Even,
therefore, if we hold that the view
expressed by the learned Chief Justice is
right it does not help the plaintiff because
the facts here are different from those
contemplated by the learned Chief Justice.
The other Judge who was a party to that
decision, Manoharlal J., took more or less
the same view.
(9) Thus, as we have already stated, that
for a transaction to be regarded as of
benefit to the family it need not be of
defensive character so as to be binding on
the family. In each case the court must be
satisfied from the material before it that it
was in fact such as conferred or was
reasonably expected to confer benefit on
the family at the time it was entered into.
We have pointed out that there is not even
an allegation in the plaint that the
transaction was such as was regarded as
beneficial to the family when it was
entered into by Pindidas. Apart from that
we have the fact that here the adult
members of the family have stoutly resisted
the plaintiff's claim for specific
performance and we have no doubt that
they would not have done so if they were
satisfied that the transaction was of benefit
to the family. It may be possible that the
land which was intended to be sold had
risen in value by the time the present suit
was instituted and that is why the other
members of the family are contesting the
plaintiff's claim. Apart from that the adult
members of the family are well within their
rights in saying that no part of the family
property could be parted with or agreed to
be parted with by the manager on the
ground of alleged benefit to the family
without consulting them. Here, as already
stated, there is no allegation of any such
consultation.
(10) In these circumstances we must hold
that the courts below were right in
dismissing the suit for specific
performance. We may add that granting
specific performance is always in the
discretion of the court and in our view in a
case of this kind the court would be
exercising its discretion right by refusing
specific performance.”
(V) In my opinion, the above legal position is apt in the fact
situation present in this case. It is anxious to note that though
the appellants fully knew that the suit property was ancestral
property and three sons and wife of Ramchandra had interest
therein and when it was the case of the appellants that the
property was sold out for legal necessity none of the sons were
even joined as a party to the suit which is an indicator of the fact
that the appellants very well knew that he would not be able to
make any claim against all the three sons and would be able to
claim only against the defendant Ramchandra, who alone was
the defendant.
To sum up question nos.(a) and (b) therefore will have
to be answered in the negative.
10 As to question nos.(c):
Admittedly, the respondent has not put to challenge the
judgment and decree made by the lower appellate court in part
i.e. to the extent of 1/5th share of Ramchandra and thus said part
Mohite 24/26
::: Downloaded on - 04/03/2015 16:48:38 :::
Bombay High Court
sa563-92.doc
of the decree has become final. In view of my answer to
question nos.(a) and (b) the lower appellate court was right in
refusing the decree for specific performance of contract of the
entire suit property. Further in view of the fact that the
respondent did not put to challenge the decree made by the
lower appellate court in part in favour of the appellants,
question no.(c) will have to be answered in the negative.
11 As to question no.(d):
It is true that the appellants have made an offer to make
payment of additional compensation to the respondent for asking for
a decree for specific performance for the entire estate. However,
since I have answered question nos.(a), (b) and (c) in the negative
and since the other members of the family of Ramchandra could not
be compelled to execute the sale deed, this question also will have to
be answered in the negative.
12 As to question no.(e):
In view of the above answers to question nos.(a), (b) and (c),
the Crossobjection
will have to be dismissed.
13 Various judgments cited by the learned counsel for the parties
before me in the facts of the present case will have no application
and hence, it is not necessary for me to consider each and every
judgment. To sum up the following order is passed.
Mohite 25/26
::: Downloaded on - 04/03/2015 16:48:38 :::
Bombay High Court
sa563-92.doc
ORDER
(i) Second Appeal No.563 of 1992 is dismissed.
(ii) Cross Objection (ST). No.22235 of 2009 is dismissed.
(iii) No order as to costs.
(iv) The learned counsel for the appellants submits that the
interim order is operating and same may be continued for
another eight weeks. Request is opposed by Mr.Sathe the
learned counsel for the respondent. However, I continue
interim order for another eight weeks.
( A.B. CHAUDHARI, J. )
Mohite 26/26
::: Downloaded on - 04/03/2015 16:48:38 :::
No comments:
Post a Comment