SHIVDATT TUKARAM SONI Vs. DOLATSING BALUBHAI

JUDGEMENT

(1.) DAVE J. [The Hon'ble court after stating the facts further observed]

(2.) IT is not disputed before us that the property in question was an ancestral property and that defendants Nos. 1 to 6 viz. present respondents Nos. 1 to 6 had interest therein. IT is also not disputed that on the day of the suit contract the respondents Nos. 5 and 6 were minors and that Monghiben as the mother and guardian of the minors had executed an agreement of sale in favour of the plaintiff. IT is also not disputed that respondent No. 1 being the eldest male member of the joint Hindu family was managing the same as a Karta of the said family. The pertinent question therefore which arises for our consideration is-whether the suit contract of sale could be specifically enforced against the defendants and particularly against minor defendants. In the instant case defendant No. 1 Dolatsinh Balubhai Ex. 53 had admitted in his cross-examination that from the amount received by sale of the suit property they had spent for the marriage of his brother Ramesh that they had also spent some amount to pay of the debt incurred for marriage of Dinesh which had taken place in 1964. He had also admitted that he had no other source to meet these liabilities except the sale of the suit property. IT has also come in his evidence that in his sisters daughters marriage they had performed Mosara ceremony in which also Rs. 200.00 were spent. IT will thus be seen that if the defendants Nos. 1 to 6 had no other property from which they could meet family liabilities and if money was required for meeting the expenses of marriages of defendant No. 4 Ramesh and defendant No. 3 Dinesh it cannot be said that the contract of sale in favour of the present appellant was not for legal necessity. In fact it is not submitted before us by the learned advocates for the respondents that there was no legal necessity for the transaction entered into by defendant No. 1 and Bai Monghi in favour of the present appellant. We therefore need not dilate on the question whether there was any legal necessity or Dot. Thus if the legal necessity for the said transaction is held provide a further question which would prop up for consideration is whether defendant No. 1 and Bai Monghi could be said to be competent to alienate the minors interest by entering into the said agreement in other words whether the suit agreement was legally enforceable in a court of law and lastly whether in such a suit for specific performance the court should exercise its discretion by refusing to pass a decree for specific performance in case it was found that the property was already sold for higher value in favour of defendant No. 7.