SILLA CHANDRA SEKHARAM Vs. LALITA SHAHUANI

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the decision, of the Additional Subordinate judge of Berhampur, partially decreeing his suit for specific performance of a contract for sale of a house situated in Berhampur Town. The house originally belonged to one Gopinath Sahu who died sometime in 1943 leaving a widow Lalita shahuani (defendant No. 2) and a son named Ramchandra Sahu. On 21-2-1951, the said Ramchandra Sahu executed a registered deed of agreement (Ext. 1)agreeing to sell that house for Rs. 6000/- to the plaintiff within one year from that date and received an advance of Rs. 300/- in presence of the Sub-Registrar. It was alleged by the plaintiff that the said agreement was entered into by ramchandra Sahu as manager of a Hindu joint family consisting of himself and his mother (defendant No. 2) that the sale of the house was for legal necessity, and that consequently it was binding on the interests of his mother also. His mother (defendant No. 2) however refused to join in the execution of the saje deed and the two defendants, sometime in June 1951, attempted to sell the house to some other person. The plaintiff thereupon gave notice to all concerned and brought this suit, out of which this appeal arises, for specific performance of contract; or, in the alternative, for damages and recovery of the advance of Rs. 300/- paid by him. Defendant No. 1 denied that he was the karta of the family and further alleged that the contract was entered into under undue influence. He also stated that the sale of the house was not for legal necessity and as such was not finding on the interests of his mother. He was always ready and willing to sell his share of the house to the plaintiff, but the plaintiff insisted on his mother joining the execution of the sale deed and this insistence was mainly responsible for his inability to perform his part of the contract. His mother (defendant No. 2) challenged the contract as not binding on her mainly on the ground that her son (defendant No. 1} became addicted to bad habits, kept a concubine, and squandered away all his patrimony by reckless living. She, therefore alleged that the contract for the sale of the house was not for legal necessity and consequently not binding on her interests.

(2.) THE trial Court held that the contract was not vitiated by undue influence, that the value put on the house at Rs. 6000/- was a fair value on the date of the contract and that defendant No. 1 was clearly bound by the same. But he held that the contract was not entered into for legal necessity and as such 'would not bind the interests of his mother (defendant No. 2 ). He accordingly decreed the suit) for specific performance so far as the interests of defendant 1 in the house were concerned, and directed that defendant to execute a sale deed in favour of the plaintiff and further declared that the plaintiff would be entitled to have joint possession of the house, along with defendant 2 on certain terms specified by him.

(3.) THE plaintiff filed this appeal urging that the contract was for legal necessity and as such was binding on the interests of the defendant 2 also. The appeal was admitted on 9-12-1953. But on 21-1-1955, defendant 2 died leaving no other heir except derendant No, 1. Mr. H. Mohapatra on behalf of the plaintiff-appellant, therefore, urged that the question as to whether the contract was for legal necessity so as to bind the interests of defendant 2 also, has now become academic and that the plaintiff was entitled to specific performance of the contract in respect of the entire interest of the joint family in the house which has now devolved on defendant 1. He relied on the well known rule of "feeding the estoppel" which has been substantially recognised in S. 18 (a) of the Specific Relief Act. He did not seriously challenge the finding of the trial Court to the effect that the contract was not for legal necessity. The recital in the deed of agreement (Ext. 1) shows that defendant 1 agreed to sell the house for repayment of antecedent debts amounting to Rs. 2700/- and also for maintenance of himself, for minor expenses and also for purchase of a smaller 'house for the use of the family. So far as the antecer dent debts amounting to Rs. 2700/- are concerned the deed does not say that they were incurred for the benefit of the estate. There was also no evidence worth the name to show that the plaintiff made bona fide enquiries about the existence of legal necessity before entering into the agreement. I must, threfore, fully endorse the finding or the trial court to the effect that the agreement was not covered by legal necessity and, as such, would not bind the interests of defendant No. 2.