HARDEVI Vs. GHANSHYAM

JUDGEMENT

(1.) VALLABH Das, husband of defendant-appellant No. 1, Smt. Har Devi and father of other appellants agreed to sell the house in dispute which is situated in Nagaur to the respondent-plaintiffs Ghanshyam and Bhanwari Lal for a sum of Rs. 2000/- and paid a part of the purchase money i. e. Rs. 500/- on 24-1-1961. He also executed an agreement the same day in favour of the plaintiffs and promised to execute a sale deed in their favour and get it registered after a week of so. The agreement has been produced in original and is marked Ex. 1. Since VALLABHdas did not execute the sale deed as promised by him, the plaintiffs gave a notice dated 8-2-1961 to VALLABHdas calling upon him to execute the sale deed and get it registered and also receive the payment of Rs. 1500/- being the balance of sale price within three days of the receipt of the notice last the plaintiffs would be compelled to file a suit against him. Inspite of this notice VALLABHdas did not execute the sale deed and therefore the respondents Ghanshyam and his son Bhanwari Lal filed the suit out of which this second appeal arises on 31-5-1961 against VALLABHdas in the Court of Civil Judge, Nagaur praying that a decree for specific performance of the agreement dated 24-1-1961 be passed against the defendant, who may also be directed to hand over possession of the house in question to the plaintiffs. It was also prayed that the plaintiffs may be awarded compensation for use and occupation of the house from 1-2-1961 upto the date of delivery of possession at the rate of Rs. 10/-per month. VALLABH Das filed the written statement on 38-7-1961 and while admitting the execution of the agreement dated 24-1-1961 pleaded that he had agreed to sell the land in question to the plaintiffs on condition that his wife and his minor sons would give their consent to the sale, and since the latter had refused to sell the property, the plaintiffs could not compel him to execute the sale deed. It was also pleaded that there was neither legal necessity for the sale of the house in question nor the proposed sale was for the benefit of the estate and since the house was admittedly ancestral, he had no authority to sell the house without there being legal necessity and without there being benefit of the estate. Before the suit could proceed to trial VALLABHdas died and the present appellants who were his widow and sons and daughters were impleaded as his legal representatives. It may be relevant here to state that originally the plaintiffs had pleaded that the house was ancestral one and VALLABH Das as manager of the joint Hindu family contracted to sell the house in question for legal necessity such as payment of antecedent debts and for meeting the expenses for house hold and also for doing the business. But subsequently by an application dated 6 7 62 the plaint was amend and in addition to the allegations to legal necessity, it was alleged that the house in question was lying in a dilapidated condition for the last 25 years, but the defendants had not carried out any repairs in it nor looked after it with the result that the residents of the locality used to ease themselves in this house. It was also stated that the house in question has not yielded rent or any other profits to the defendants and consequently the agreement by VALLABHdas to sell this house was for the benefit of the estate and was consequently binding on all the members of the family. The appellants resisted the plaintiffs' suit and pleaded inter alia that the agreement by VALLABHdas was neither for legal necessity nor for the benefit of the State, and consequently the plaintiffs' suit should be dismissed.

(2.) AFTER recording the evidence led by the parties the trial held that neither legal necessity nor benefit of estate for sale of the house in question had been established. Consequently the plaintiffs' suit for specific performance was dismissed but the defendants were directed to refund Rs. 500 - to the plaintiffs with interest at 12% per annum from the date of the agreement till payment. It was further directed that if the defendants failed to pay this amount within one month they would be bound to execute the sale deed in favour of the plaintiff and get it registered I may observe here, in passing, that such a direction for execution of the sale deed in default of payment of Rs. 500/- was altogether illegal, and the Civil Judge was clearly in error in adding such a direction while dismissing the plaintiffs' suit for specific performance.

(3.) IN Rabi Narayan vs. Kanak Prova Debi (8) the sale by the guardian of the minor was held to be good and valid as the sale price of barren land was invested in income-yielding culturable lands.