DHIRENDRA NATH VERMA Vs. YASHWANT RAO RAMCHANDRA OGALE

JUDGEMENT

(1.) DEFENDANTS in the suit for specific performance are the appellants herein. Plaintiff is respondent herein. Respondent herein on the one hand and the first appellant (first defendant) on the other hand entered into an agreement dated 14-12-1982, wherein the first defendant agreed to sell to the plaintiff for a consideration of Rs. 40,000/-, 0. 20 acres of land together with a house situated therein, in which the plaintiff's father was then a tenant. A sum of Rs. 2,000/- was paid on that day. On 9-1-1983, further agreement was entered into on payment of Rs. 18,000/ -. After waiting in vain for the first defendant to execute the sale-deed, plaintiff instituted a suit for specific performance. The first defendant contended that the property was ancestral property and was allotted along with other items of the property to his share, that is, to the share of his Branch family and that he was only the Karta of the joint family. He also contended that the plaintiff should have impleaded the other coparceners, namely, his sons (defendants Nos. 2 and 3 ). An issue was framed in this behalf and the trial Court ultimately held that the plaintiff should implead defendants Nos. 2 and 3. Plaintiff did so. Defendants Nos. 2 and 3 contended, among other things, that the property being joint family property and there being no family benefit or necessity in support of the proposed sale, the Karta could not execute either the agreement or the sale-deed, and, therefore, the agreement is not enforceable. The trial Court upheld this contention of defendants Nos. 2 and 3, declined to grant decree for specific performance, but directed the first defendant to refund the consideration received by him with interest. The plaintiff challenged this decree by way of an appeal in this court. Learned Single Judge, who heard the appeal agreed with the finding that the agreement of sale is not supported by any family benefit and necessity but nevertheless granted a decree for specific performance on the ground that defendants Nos. 2 and 3 who were aware of the agreement did not protest against the same and that if partition of the joint family property is effected, the share of the first defendant would be much more than the subject matter of the agreement. The defendants now challenged this decree passed by the learned Single Judge.

(2.) THE concurrent finding in the case is that the sale proposed under the agreement is not supported by family necessity or benefit. Therefore there can be no controversy that if the sale has been effected, defendants Nos. 2 and 3 as non-alienating coparceners could have specifically avoided the sale. Plaintiff has no case that the transaction was sought to be entered into in order to clear any antecedent debt of the father-karta.

(3.) LEARNED counsel for the respondent contended that assuming that the proposed sale is vitiated for want of family necessity or benefit such a defence cannot be permitted to be raised in a suit for specific performance and the remedy of defendants Nos. 2 and 3, if at all, is to wait for execution of the sale deed and then seek appropriate remedy by filing a suit. Learned counsel for the respondent placed reliance on a decision of the Supreme Court in Sunil Kumar and Anr. v. Ram Prakash and Ors. , AIR 1988 SC 576.