MUKESH KUMAR Vs. COLLECTOR HARBANS WARAIAH

JUDGEMENT

(1.) Respondents Nos. 1 and 2 entered into an oral agreement with respondent No. 4 to sell property comprising building No. 1 along with open area surrounding Cool Road, Jalandhar Measuring about 3 kanals and 17.75 marlas. Pursuant to this agreement a document was written on April 12, 1978 setting out that respondents Nos. 1 and 2 would together purchase one half of the property, while respondent No. 3 would purchase the other half. A sum of Rs. 80,000/- was paid on February 23, 1978 as earnest money and Rs. 40,000/- was paid on April 12, 1978, Respondent No. 3 entered into the possession thereof on that day. A suit was originally filed by respondents Nos. 1 and 2 against respondent No. 4 and appellants Nos. 1 to 4, while appellant No. 5 was impleaded subsequently. The suit filed was for specific performance to execute the sale deed in favour of the plaintiffs and to receive the balance amount of Rs. 80,000/- before the Sub-Registrar, Jalandhar at the time of Registration of the sale deed. In the alternative reliefs claimed for are for the return of the earnest money paid with stipulated damages and the cost incurred for the repairs of the building. The trial Court on August 4, 1984 decreed the suit directing the plaintiffs to deposit the balance sale price of Rs. 80,000/- along with sale and registration expenses in that Court within a period of two months and further directed the respondents to execute the required sale deed in favour of the plaintiffs. However, the trial Court excluded 1/5th share of Manju, appellant No. 4 herein. The first appellate Court while dismissing the appeal filed by the defendants allowed the cross-objections of the plaintiffs to the extent of 1/5th share of appellant No. 4. On second appeal to the High Court, the findings recorded by the Court below were affirmed except to the extent of 1/5th share of appellant No. 4 and the appeal filed by appellant No. 4 was allowed to the extent of her 1/5th share in the property and the decree of the first appellate Court was set aside and that of the trial Court restored. That decree is in appeal before us by way of special leave.

(2.) Several issues had been raised in the suit. The trial Court came to the conclusion that Suresh Kumar, respondent No. 4, as Manager or Karta of the Hindu undivided family comprising defendants Nos. 1 to 5, entered into oral agreement on February 23, 1978 to sell the suit property to the plaintiffs and received a sum of Rs. 1,20,000/- as earnest money. He also found that, considering the extent of properties and nature of the business carried on by the joint family of the defendants, the Hindu undivided family was heavily in debt facing suits of the magnitude of Rs. 70 lakhs and more, was also in arrears of income tax of more than Rs. 3,60,000/- and sale of such property which was not yielding any income was a part of good management by the Karta and the proceeds were prudently applied for the business of the Hindu undivided family and such a transaction could bind all the members of the Hindu undivided family, including Yogesh Kumar who was minor at that time. The pleading and evidence showed that the plaintiffs were always ready and willing to perform their part of the contract and they were capable of paying the balance amount of the sale price along with sale and registration charges, but the respondents committed the breach of contract, and, therefore, the appellants were entitled to the specific performance of the contract. The share of appellant No. 4 to the extent of 1/5th share could not come in the way of execution of the decree for specific performance of the agreement to 4/5th share of the property which was sold. These findings stood affirmed in the second appeal except to the extent indicated earlier. Therefore, in substance the findings of the trial Court have been affirmed in the second appeal by the High Court.

(3.) The learned counsel for the appellant raised three specific contentions for our consideration. Firstly that the finding recorded by the Courts below in regard to legal necessity is not correct. On this aspect the contention put forth is that the High Court had found that the firm of defendants was known as M/s. Amin Chand Bhola Nath. In the said firm all the defendants were not partners and, therefore, the High Court was wrong in having come to the conclusion that the sale of the property belonging to a joint family was for the benefit of the family when, in fact not all the defendants were partners thereof. But it is brought to our notice that though all the defendants may not have been partners thereof, all male members of the joint family who were major at that time were partners of the firm and, therefore, it could not be said that the business carried on by M/s Amin Chand Bhola Nath is not a family business of the defendants. The fact that the joint family properties have been attached for payment of the income tax extending to over Rs. 3 lakhs itself was sufficient to hold that the sale of the property was for the purpose of benefit of the joint family. In that view of the matter, we find no infirmity in the finding recorded by the Courts below as to legal necessity.