Balbir Chand and Others vs Smt. Jiwani and Others

G.R. Majithia, J.—The Appellants/Plaintiffs have come up in Regular Second Appeal against the judgment and decree of the First Appellate Court reversing on appeal those of the trial Judge and dismissing their suit for possession of the property in dispute by way of specific performance of the agreement to sell and instead decreeing the suit for recovery of earnest money only.

.2. The Facts Neki (since deceased) entered into an agreement to sell dated May, 21, 1979 with the Plaintiffs agreeing to sell land measuring 32 Kanal 6 marlas for Rs. 32,000/- of which he received Rs. 12,000/- as earnest money. The sale deed was to be executed on or before June 21, 1979. Neki did not execute the sale deed in terms of the agreement to sell necessitating the filing of the suit for possession, by way of specific performance of the agreement to sell Neki denied the execution of the agreement. During the pendency of the suit, he died and his legal representatives were brought on record. The legal representatives filed fresh written statement and took various objections including that Neki was insane; that the property agreed to be sold was ancestral and that the agreement was without legal necessity and was not enforceable in law against them.

The trial Judge framed the following issues arising out of the pleadings of the parties:

Whether Neki deceased has executed agreement dated 21st May, 1979 as alleged, if so, what are the terms of the same? OPP.

If issue No. 1 is proved whether the agreement dated 21st May, 1979 is void, as alleged? OPD

Whether the Plaintiffs have always been ready and willing to perform heir part of the contract? OPD

Whether Neki deceased had committed broach of agreement dated 21st May, 1979? OPP

Relief.

Issue No. 1, 3 and 4 were decided in favour of the plaintiffs; issue No. 2 was decided against the defendants and in view of the findings under issues No. 1, 3 and 4, the Plaintiff�s suit for possession by way of specific performance of the agreement to sell was decreed.

The successors in interest of Neki, feeling aggrieved against the judgment and decree of the trial Judge challenged the same in first appeal. The First Appellate Court found that the property was ancestral and that the sale by the Karta could be challenged on the ground that it was not made for legal necessity and further found that in the instant case, no legal necessity for he sale was established. It thus reversed the judgment and decree of the trial judge but passed a decree for recovery of Rs. 12,000/- which were paid as earnest money and also for Rs. 4,000/- as the price of the house which could not be transferred to the plaintiffs.

I have heard the learned Counsel for the parties. The learned Counsel for the Appellants maintained that the agreement to sell can be specifically enforced. I am afraid the submission is devoid of any merit. It is undisputed that the property in dispute is a co parcenary property. A manager of a joint Hindu family is not entitled to sell joint Hindu family property except for the benefit of the estate. In the instant case, there is no proof that the sale proceeds were needed by the family or the same were utilised for the purposes of the family. In Balmukand L. Hira Nand Vs. Pindi Dass (deceased) and Others, it was held thus:

The Plaintiff has not been able to prove any benefit to the estate. He has only proved that Pindi Dass was able to sell the land at a rate much higher than the market rate. This by itself is not a benefit to the estate. In the absence of any further fact that the money utilised by the sale was needed by the family or was utilised for. the purposes of the family, we feel that the turning of a stable asset like immovable property of the family into cash which was to be realise I by the then manager of the family could not by itself be for the benefit of the estate.

The correctness of this judgment was challenged in the apex Court and the same is reported as Balmukand Vs. Kamla Wati and Others, Before the apex Court, an additional argument was raised on behalf of the Plaintiff that a decree for specific performance could be passed at least against the share of the coparcener who had agreed to Sell. This contention was repelled with the following observations:

However, in the case before us there is no claim on behalf of the; Plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindi Dass alone in the property. In the result the appeal fails and is dismissed with costs.

Similarly, in the instant case, there is no such claim laid by the Plaintiff that they are willing to pay the entire sale consideration for obtaining a decree for the share of Neki alone in the property in dispute.

The appeal is devoid of any merit and is accordingly dismissed but with no order as to costs.