MADIRAJU JAGANNADHA RAO Vs. SOMU LAKSH MUNARAYANA

JUDGEMENT

(1.) Defendant No. 2 is the appellant in this second appeal. He is the adopted son of defendant. No. 1, his adoption having taken place in 1917. Defendent No. 1, the adoptive father, executed an agreement in favour of the plaintiff to sell some immoveable property belonging to the joint Hindu family composed of defendants Nos. 1 and 2. In Ex. A which is the agreement defendant No. 1 undertook as follows: I shall include my adopted son Jagannath Rao also as a party to the sale-deed and execute the document of sale in your favour.

(2.) Defendant No. 1 having defaulted to carry out his part of the contract, the plaintiff filed the original suit of which this second appeal has arisen for specific performance of this agreement to sell, making the father as defendant No. 1 and the adopted son as defendant No. 2 to the suit. Defendant No. 1 set up a plea that the plaintiff himself agreed to secure the conjunction of defendant No. 2 and the plaintiff not having done so, the suit for specific performance should fail for that reason. Defendant No. 2 pleaded that the agreement was not entered into, for necessary purposes and that under the adoption deed, Ex. 2, dated 12th February, 1917, the adoptive father, defendant No. 1, undertook not to alienate any of the family properties without the conjunction of defendant No. 2 also in the same. The trial Court framed six issues of which the 4 was "whether specific performance can be granted" and the 5 "whether defendant No. 2 is bound by the contract entered into by defendant No. 1." Another issue was raised whether the plaintiff undertook to procure the conjunction of defendant No. 2 also in the same. Both the lower Courts found against defendant No. 1's plea that the plaintiff undertook to get the defendant No. 2 also to join in the sale-deed. The first Court granted a decree for specific performance in so far as defendant No 1 was concerned. One reason why the suit against defendant No. 2 was dismissed is stated in para. 14 of the first Court's judgment: Under Ex. 2, the adoption deed, defendant No. 1 undertook not to alienate any family property. Defendant No. 2 is a major and it has not been satisfactorily proved that defendant No. 1 is the family manager. Under these circumstances I find that defendant No. 2 is not bound by the contract.

(3.) I must say at this stage that I am not able to follow the learned Munsif in the observation that, simply because defendant No 2 the adopted son is a major, there must be some satisfactory proof that defendant No. 1, the adoptive father, is the manager. The learned District Munsif observes: "It has not been satisfactorily proved that defendant No. 2 is the family manager". I cannot understand what sort of proof is necessary to constitute the adoptive father and the only other member of the joint Hindu family besides the adopted son, a joint family manager. Under Hindu Law defendant No. 1 is the joint family manager and unless any other member proves that owing to specific agreement or for some other reasons defendant No. 1 has ceased to be manager, it is not necessary to prove that defendant No. 1 is the joint family manager. The learned District Munsif passed a decree against defendant No. 1 only, and dismissed the suit against the second. On plaintiff's appeal, the learned Subordinate Judge went into the question whether the agreement entered into by defendant No. 1 to sell the properties to the plaintiff Ex. A, was binding upon the joint family. He found that as early as 1912 there was a mortgage-debt incurred by defendant long before the adoption of defendant No. 2. He also found that the mortgagee filed a suit and obtained a decree (Ex. C) for Rs. 2,000 and odd on the footing of his mortgage. After a portion of the decree amount had been given up by the mortgagee-decree-holder there was a large amount of about Rs. 2,000 due under the decree of 1921. It was to pay off that decree-debt and for a fresh consideration of Rs. 200 that defendant No. 1 executed this agreement to sell the properties to the plaintiff, and he took an advance of Rs. 100 out of the Rs. 200 at the time of the agreement of sale. Of course, the lower Appellate Court held that defendant No. 1 was the manager. On these findings the lower Appellate Court modified the decree of the first Court and granted a decree for specific performance against defendant No. 1 also. This second appeal has accordingly been preferred by defendant No. 2. Two main points have been raised by the learned Advocate for the appellant. One was that in a suit for specific performance proper, in pursuance of an agreement entered into by defendant No. 1 (in whatever capacity he might have entered into that agreement), strangers ought not to have been made parties to the suit. The other was that, having regard to the recent Privy Council case reported as Skinner V/s. Skinner 119 Ind. Cas. 633 : 57 M.L.J. 765 : 6 O.W.N. 835 : 30 L.W. 451 : (1929) A.L.J. 1060 : Ind. Rul. (1929) P.C. 337 : 50 C.L.J. 487 : (1929) M.W.N. 937 : 32 Bom. L.R. 1 : 11 P.L.T. 1 A.I.R. 1929 P.C. 269 : 51 A. 711 : 56 I.A. 363 (P.C.), the agreement in question, Ex. A, is inadmissible in evidence and consequently the suit must fail for want of legal evidence to prove the agreement.