Akshaya Kumar Brahma and another vs Gayatrirani Brahma and another

Dr.A.K.RATH, J.

Plaintiffs are the appellants against a reversing judgment. The suit was for declaration that agreement to sell dated 5.2.1977 executed by defendant

no.2 in favour of defendant no.1 is illegal, set aside the judgment and decree passed in T.S.No.4 of 1978 and the registered sale deed executed in

favour of defendant no.1 through the process of the Court in Execution Case No.30 of 1980 and other consequential reliefs.

The case of the plaintiffs was that they are the sons of defendant no.2. The suit property is the only joint ancestral homestead having a dwelling

house thereon. The same belongs to the plaintiffs and their father-defendant no.2. The plaintiffs, their mother and sister are residing in the house.

Defendant no.2 was working as compositor in Utkal University Press, Bhubaneswar. He was addicted to liquor and man of immoral character. As

dissensions cropped up in the family, their mother left the quarter and stayed in the suit house. Defendant no.1 is a stranger to the family. On

24.6.1983, defendant no.1 with her husband tried to forcibly cut the trees standing on the homestead. She disclosed that she had obtained a decree on

14.7.1983 in T.S.No.4 of 1978. The plaintiffs obtained the certified copy of the judgment which revealed that defendant no.2 had executed an

agreement to sell in favour of defendant no.1 on 5.2.1977. Thereafter, defendant no.1 instituted the suit for specific performance of contract. The suit

was decreed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

Defendant no.1 filed a written statement stating, inter alia, that the suit property is the joint family property of the plaintiffs. Defendant no.2 as the

Karta of the family executed the agreement to sell. As defendant no.2 denied to execute the sale deed, she filed T.S.No.4 of 1978 for specific

performance of contract. The suit was decreed. Defendant no.2 was set ex parte.

Stemming on the pleadings of the parties, learned trial court framed nine issues. Parties led evidence, oral and documentary, to substantiate their

case. Learned trial court dismissed the suit holding, inter alia, that the suit property is the ancestral property of defendant no.2. Defendant no.2 was

the Karta of the joint family. At the time of execution of agreement to sell, the plaintiffs were minors. They were not parties in T.S.No.4 of 1978.

Defendant no.2 did not represent the interest of his minor sons. They have a major share in the property. The judgment passed in T.S.No.4 of 1978,

Ext.3, is not binding on them. The suit is not barred by res judicate. Onus lies on defendant no.1 to prove that she made a reasonable enquiry about the

existence of the legal necessity of the transaction in question. Defendant no.1 had failed to prove the same. Therefore, sale of the suit land on the

basis of the decree to the extent of the shares of plaintiffs is invalid. Sale of the suit land is valid to the extent of 1/3rd share of defendant no.2, but in

view of the provisions contained in Section 44 of the Transfer of Property Act, defendant no.1 cannot be allowed joint possession of the dwelling

house along with the plaintiffs. Felt aggrieved, defendant no.1 filed T.A.No.14 of 1989 before the learned Sub-Judge, Jagatsinghpur. Learned appellate

court came to a conclusion that defendant no.2 was the Karta of the family. The judgment and decree passed in T.S.No.4 of 1978 is binding on the

plaintiffs. Defendant no.2 as the Karta of the joint family had filed the suit for himself and on behalf of the minor sons. Defendant no.2 was entitled to

sell the interest of the minors to clear the debts. Agreement to sell, Ext.2, was for legal necessity. Held so, it allowed the appeal.

This appeal was admitted on the following substantial question of law:

“Whether without a finding on the question of legal necessity, the appellate court was justified in holding that the alienation made by the father-

manager of a joint Hindu Family is binding on the interests of the other coparceners?â€​

Heard Mr. D.P.Mohanty, learned Advocate for the appellants and Mr.G.Mukherji, learned Advocate along with Mr.Swayambhu Mishra, learned

Advocate for the respondents.

Mr.Mohanty, learned Advocate for the appellants submitted that learned appellate court is not correct in coming to the conclusion that the judgment

and decree passed in T.S.No.4 of 1978 operates as res judicata. The plaintiffs were minors. They were not parties in the said suit. Thus, the judgment

shall not operate as res judicata. Agreement to sell dated 5.2.1977, Ext.2, did not disclose that defendant no.2 had represented the minors-plaintiffs.

Defendant no.2 was addicted to liquor and man of immoral character. There was no legal necessity to enter into an agreement to sell. Learned

appellate court, instead of discussing the evidence on record with regard to legal necessity of defendant no.2 to sell the suit property, fell into patent

error relying on the findings rendered in the judgment passed in T.S.No.4 of 1978. He placed reliance on the decisions of the apex Court in the case of

Kallathil Sreedharan and another v.Komath Pandyala Prasanna and another, (1996) 6 SCC 218.

Per contra, Mr.Mukharji, learned Advocate for respondents submitted that defendant no.2 was the Karta of the family. Karta can alienate the joint

family property either in the family interest or benefit of estate. Defendant no.2 entered into an agreement to sell, Ext.2, in favour of defendant no.1

for legal necessity. Since defendant no.2 had not executed the sale deed, defendant no.1 instituted T.S.No.4 of 1978 for specific performance of

contract. The suit was decreed. Thereafter, execution case was filed. The sale deed was executed through the process of the Court. In the said suit,

learned trial court held that defendant no.2 entered into an agreement to sell in favour of defendant no.1 for legal necessity. Defendant no.2, being the

Karta of the family, had every right to sell the suit property for the benefit of the family. The plaintiffs are neither necessary nor proper parties to the

suit for specific performance of contract. Once the suit for specific performance of contract is decreed, it is to be inferred that the question of legal

necessity warranting the sell has been put to rest. The same cannot be re-agitated in a separate suit. The judgment shall operate as res judicata. He

relied on the decisions in the case of Sunil Kumar and another v. Ram Prakash and others, (1988) 2 SCC 77, Kasturi v. Iyyamperumal and others,

(2005) 6 SCC 733, Panne Khushali and another v. Jeewanlal Mathoo Khatik and another, AIR 1976 MP 148 (FB) and Amiya Kumar Sahu v. Ajit

Kumar Sahu (R.F.A.No.107 of 2003, disposed of on 6.5.2013).

Before delving deep into the matter, it is apt to refer the decisions cited at the Bar. In Sunil Kumar (supra), the apex Court held that in a joint-Hindu

Mitakshara family, a son acquires by birth an interest equal to that of the father in the ancestral property. The father by reason of his paternal relation

and his position as the head of the family is its manager and he is entitled to alienate the joint family property so as to bind the interests of both the

adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an

antecedent debt. The power of the Manager of a joint Hindu family property is analogous to that of a Manager for an infant heir. It was further held

that when an alienation is challenged as being unjustified or illegal, it would be for the alienee to prove that there was legal necessity in fact or that he

made proper and bona fide enquiry and did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to

be unjustified, then it would be declared void. Such alienations would be void except to the extent of the manager's share, in Madras, Bombay and

Central provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire

alienation would be void.

In Kasturi (supra), the question arose for consideration as to whether in a suit for specific performance of contract for sale of a property instituted

by a purchaser against the vendor, a stranger or a third party to the contract, claiming to have an independent title and possession over the contracted

property, is entitled to be added as a party-defendant in the said suit. The apex Court held that a third party or a stranger to the contract cannot be

added so as to convert a suit of one character into a suit of different character. The same view was taken by the Full Bench of Madhya Pradesh High

Court.

In Kallathil Sreedharan (supra), the apex Court held that since the mandatory requirement of sanction from the Court for alienating the property of

the minor, as required under Section 8 of the Hindu Minority and Guardianship Act, had not been obtained, the contract of sale to the extent of the half

share of the minor is void and it does not bind the minor.

This Court in the case of Amiya Kumar Sahu (supra) placing reliance on the earlier decision of this Court in the case of Smt.Manohari Devi and

others v. Choudhury Sibanava Das and others, AIR 1983 Orissa, 135 held that burden to prove the legal necessity is on the purchaser. Bona fide

enquiry is to be made by the purchaser regarding the legal necessity before entering into the transaction.

On the anvil of the decisions cited supra, the instant appeal may be examined. Defendant no.2, father of the plaintiffs entered into an agreement to

sell, Ext.2, in favour of defendant no.1. Defendant no.1 instituted T.S.No.4 of 1978 for specific performance of contract. The suit was decreed. The

sale deed was executed through the process of the Court. The plaintiffs were not parties in the suit. On a threadbare analysis of the evidence on

record and pleadings, learned trial court came to hold that there was no legal necessity for defendant no.2 to sell the land. Sale of the suit land on the

basis of the decree to the extent of plaintiffs’ share is invalid. Learned appellate court fell into patent error in placing reliance on the findings of the

earlier suit to come to a conclusion that there was legal necessity. The necessary corollary is that the judgment and decree passed in T.S.No.4 of 1978

shall not operate as res judicata.

In Kammana Sambamurthy (deceased by L.Rs.) v. Kalipatnapu Atchutamma (deceased by L.R.) and others, AIR 2011 SC 203, apex Court thus:

In the case of A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid & Ors., this Court held that even where any property is held

jointly and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least

to the extent of his share, the party to the contract is bound to execute the sale deed. In that case, the suit property originally belonged to one Aziz

Khan. On his death, his heirs under the Muslim law--nine sons and two daughters inherited that property. The sons agreed to sell that property to the

first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific

performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. It was admitted

case that the daughters of Aziz Khan had not joined in the agreement of sale. The trial court dismissed the suit by holding that the agreement was

indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court

against the judgment and decree of the trial court. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had

agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz

Khan were held not bound by the agreement. However, the High Court held that insofar as the executants of the agreement (sons of Aziz Khan)

were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. The High

Court, accordingly, granted decree for specific performance to the extent of 5/6th shares which Aziz Khan's sons had in the property. This Court

affirmed the decree of the High Court and it was held that plaintiff's suit for specific performance to the extent of 5/6th share was rightly decreed by

the High Court warranting no interference. While holding so, this Court relied upon earlier decision in the case of Manzoor Ahmed Magray (AIR 2000

SC 191 : 1999 AIR SCW 4283).â€​

The next question crops up as to the share of the defendant no.1 in the suit property. Whether this Court can direct to carve out the share of the

plaintiffs in the absence of any prayer in the plaint ? The subject matter of dispute is no more res integra. The apex Court in the case of Firm Srinivas

Ram Kumar vs. Mahabir Prasad, AIR 1951 SC 177 held thus:

The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis.

The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the

other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only

admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there

would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the

defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when

they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may

not be proper to drive the plaintiff to a separate suit.â€​

Admittedly, father of the plaintiffs executed an agreement to sell. The suit for specific performance of contract filed by defendant no.1 as plaintiff

was decreed. Father of the plaintiffs has 1/3rd share in the suit property. In view of the same, the plaintiffs have 2/3rd share and defendant no.1 has

1/3rd share. The substantial questions of law are answered accordingly.

In the result, the appeal is allowed. The judgment and decree of the lower appellate court and that of the learned trial court is modified to the

extent that the plaintiffs have 2/3rd share in the suit property and defendant no.1 has 1/3rd share in the property. There shall be no order as to costs.