MADIRAZU JAGANNADHA RAO Vs. SOMU LAKSHMINARAYANA

JUDGEMENT

(1.) The 2nd defendant is the appellant in this second appeal. He is the adopted son of the 1st defendant, his adoption having taken place in 1917. The 1 defendant, the adoptive father, executed an agreement in favour of the plaintiff to sell some immoveable property belonging to the joint Hindu family composed of the 1 and 2nd defendants, In Exhibit A, which is the agreement, the 1 defendant undertook as follows: I shall include my adopted son Jagannadha Rao also as a party to the sale-deed and execute the document of sale in your favour.

(2.) The 1 defendant having defaulted to carry out his part of the contract the plaintiff filed the original suit out of which this second appeal has arisen for specific performance of this agreement to sell, making the father as the 1 defendant and the adopted son as the 2nd defendant to the suit. The 1 defendant set up a plea that the plaintiff himself agreed to secure the conjunction of the 2nd defendant, and the plaintiff not having done so, the suit for specific performance should fail for that reason. The 2nd defendant pleaded that the agreement was not entered into for necessary purposes and that under the adoption deed, Exhibit II, dated 12 February, 1917, the adoptive father, 1 defendant, undertook not to alienate any of the family properties without the conjunction of the 2nd defendant also in the same. The Trial Court framed six issues of which the 4 was "whether specific performance can be granted" and the 5th, "whether the 2nd defendant is bound by the contract entered into by the 1 defendant". Another issue was raised whether the plaintiff undertook to procure the conjunction of the 2nd defendant also in the same. Both the Lower Courts found against the 1 defendant's plea that the plaintiff undertook to get the 2nd defendant also to join in the sale-deed. The first Court granted a decree for specific performance in so far as 1st defendant was concerned. One reason why the suit against the 2nd defendant was dismissed is stated in paragraph 14 of the first Court's judgment: Under Exhibit 11, the adoption deed, the 1 defendant undertook not to alienate any family property. The 2nd defendant is a major and it has not been satisfactorily proved that the 1 defendant is the family manager. Under these circumstances I find that the 2nd defendant 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 the 2nd defendant, the adopted son, is a major, there must be some satisfactory proof that the 1 defendant, the adoptive father, is the manager. The learned Munsif observes: It has not been satisfactorily proved that the 1 defendant is the family manager.