BALMUKAND L HIRA NAND Vs. PINDI DASS

JUDGEMENT

(1.) THE facts giving rise to this first appeal are as under: One Balmukand, a resident of Batala, filed a suit against Pindi Das, Haveli Ram, Khem Chand and Sat pal sons of Nihal Chand, residents of Batala, on 12-2-1947, far possession by specific performance of a contract of sale of 3/20 share of land measuring 13 kanals 1 marla situate in Mauza Faizpur (included in Batala) on payment of Rs. 9,687/8/ -. The plaintiff alleged that all the four defendants were real brothers and constituted a joint Hindu family of which Pindi Das defendant was the karkun and manager, that defendant No. 1 as manager was fully competent to make any alienation of the property of the family, that the property in suit was the property of the joint Hindu family, that on 1-10-1945 defendant no. 1 as Manager of the family entered into a transaction of sale of the property in dispute with the plaintiff at the rate of Rs. 250/- per marla and received a sum of Rs. 100/- as earnest money from the plaintiff, that the defendants in spite of being repeatedly asked to receive the remaining sale money from the plaintiff and execute and complete a sale deed in respect of the land in suit had failed to perform their parti of the contract, that the price of the land in question by calculation came to Rs. 9,787/8/-, and that after deducting Rs. 100/-paid as earnest money the plaintiff was entitled to have specific performance of the contract on payment of Rs. 9,687/8/ -. Defendant No. 1 filed one written statement and defendants Nos. 2 to 4 jointly filed another. Defendant No. 1 pleaded that the land in suit had never been sold by him; that the land sold by him was really another land situate in a locality called 'jowahar Nagar'; that the contract of sale was at any rate vague and uncertain and was null and void; that he had no right to sell the land on behalf of defendants Nos. 2 to 4 and a suit for specific performance of the alleged contract did not lie. Defendants Nos. 2 to 4 pleaded that defendant No. 1 had not entered into any transaction with the plaintiff and that at any rate he was not enfitled to enter into the transaction in question. They further pleaded that the defendants did not constitute Hindu joint family and that in any case the transaction was not for the benefit of the family. The trial Court recorded the statements of the plaintiff and of Pindi Das on 3-4-1947 and then framed the following eight issues: 1. Whether defendant No. 1 on his own account and as the Karta of the joint Hindu family consisting of the defendants entered into an agreement on 1-10-1945 to sell the land in dispute with the plaintiff? 2. Whether defendants 2 to 4 do not form a joint Hindu family with defendant No. 1? 3. Whether the land in dispute is the property of the joint Hindu family consisting of the defendants Nos. 1 to 4? 4. Whether the alleged sale is for the benefit of the joint Hindu family? If not what is ifs effect? 5. If the alleged agreement between defendant No. 1 and the plaintiff is proved and sale is not for the benefit of the joint Hindu family can the defendant No. 1 be ordered to sell his share in the land to the plaintiff? (O. P.)Onus objected to but over-ruled vide para 269, Mulla's Hindu Law, 9th edition. 6. In case it is found that the defendants do not form a joint Hindu family and the alleged agreement to sell is proved is not defendant No. 1 liable to part with his share in the land in dispute in favour of the plaintiff? 7. Whether defendant No. 4 was present at the time of the alleged agreement to sell and consented to it and is bound by the same? 8. Relief.

(2.) THE trial Court came to the conclusion that defendant No. 1 had on his own account and as the karta of the joint Hindu family consisting of the defendants entered into an agreement of 1-10-1945 to sell the land in dispute to the plaintiff at Rs. 250/- per marla; that defendants Nos. 2 to 4 were members of the pint hindu family along with defendant No. 1; that the property in question was the property of the joint Hindu family consisling of the defendants; that the alleged sale was not for the benefit of the joint Hindu family and was therefore not binding on defendants Nos. 2 io 4. The trial Court also found that the transaction could not be enforced against the share of defendant No. 1 in the property in question and that although defendant no. 4 was present at the time of the alleged agreement to sell, he did not give any consent to the sale in question. On the aforesaid findings the trial Court dismissed the plaintiff's suit on 26-6-1950 leaving the parties to bear their own costs. The plaintiff has come up to this Court in first appeal.

(3.) IT must be ncted that the learned counsel for the parties did not contest the findings of the trial Court on issues Nos. 1, 2, 3, 5 and 6. Mr. Shamair Chand, learned counsel for the appellant, mainly contended that the sale in question had been made for the benefit of the joint Hindu family and that Sat Pal who was present at the time of the sale was actually consulted and had consented to the sale. As pointed out by the learned trial Court no such plea had been taken by the plaintiff in the plaint. Defendants Nos. 2 to 4 pleaded in their written statement that the alleged sale was not for benefit of the family. On 3-4-1947 the trial Court recorded the statement of Balmukand plaintiff and it was in that statement for the first time that the plaintiff pleaded the. sale to be for the benefit of the family. The exact words in which the plea was taken are: "defendants Nos. 1 to 4 form a joint Hindu family of which defendant no. 1 is the karta. The defendants wanted to sell the land as it was fetching good price. The defendant No. 1 did not disclose any necessity for the sale. He told me that the land on partition will be of little use to them. Defendant No. 1 said that the sale deed will be executed after he can get copies of the jama-bandi".