P (PLP)

THADANI, J.‑

This is an appeal from the judgment and decree of the 1st Class Subordinate Judge of Shikarpur in suit No. 31 of 19,1, in which he dismissed the plaintiff‑appellant's suit for specific performance of a contract for the sale of certain ‑agricultural property agreed to be sold by the respondent Kishinchand. The appellant's case as stated in para 4 of the plaint was that the land in suit was ancestral property of the defendant which came to his share upon a partition with his brothers and that at the time of the contract for sale the respondent and his two sons were members of a Joint Hindu Family of which the respondent was the manager. The respondent's. main contention was that the land in suit did not belong to him exclusively his two minor sons had each a third share. He denied that he was a manager of the Hindu Joint Family and claimed, "that in' the circumstances alleged by him he could not be called upon specifically ' to perform' the contract as , he had no right to convey the undivided shares 'of his minor sons. Upon the pleadings the trial Court framed the following issues: "

1. Is the plaint insufficiently stamped ?

2. Has the defendant agreed to sell the land in suit along with the , interest of the joint family ? If so, can the plaintiff have specific performance of contract of the interest of the other members of the joint family of the defendant ? (Covers Paras. 18 and 21 of the written statement).

3. Has the defendant conveyed the right to recover Hakab in the Kario Kewalram as alleged in the plaint? If so, cannot such right be conveyed as alleged by the defendant in para. 12 of the written statement ?

4. Is the plaintiff entitled to specific performance of the entire property ? If so to what extent. ?

5. Is the plaintiff entitled to any damages ? If so what ?

9. What should the decree be ? On Issue No. 2 the trial judge found as follows: " I accordingly find that the defendant agreed to sell the land in suit along with the interest of the joint family but that the plaintiff cannot lave specific performance of the whole contract or even of the defendant's interest in the joint family property." Mr. Manghanmal for the appellant has confined his arguments to Issue No. 2 only. His contention is that having regard to the recitals in the agreement for sale. and the fact that' the minor sons of the respondent have not been .impleaded, his, client is entitled to a decree for specific performance in terms of the agreement. The difficulty in accepting Mr. Manghanmal's contention arises from certain admissions trade by the appellant in para. 4 of the plaint and the operative part of the agreement which sets out what is sought to be conveyed. As the learned judge points out, it is an admitted position that the land in suit is the joint family property of the respondent and his minor sons. Having regard to this admission, and the fact that what is sought to be conveyed by the respondent is his ancestral right in the property which amounts to a third undivided share, we do not think it matters that the respondent's sons have not been impleaded in the suit. The appellant's right to enforce specific perfarmance of the contract in question will, in view of these two facts, be governed by the law affecting alienations made by the manager of a joint Hindu family in which other co‑parceners have an interest and by the provisions of section 15, Specific Relief Act. The validity of alienations of joint Hindu family property made by the manager of the family defends upon the existence of a family legal necessity or payment of antecedent debts or upon proof of benefit accruing to the family estate. Upon this aspect of the case the trial Court has observed: "It is not the case of the plaintiff that this alienation was for legal necessity or for payment of antecedent' debts or for benefit of the estate. No specific performance of an agreement to sell by the manager of a joint Hindu family can be decreed. unless it 'is shown that it is in the interest of minor members of the family and is beneficial to them : Hari Charan v. Kaula Rai A. I. R. 1917 Pat.

478. There is nothing to show that the land was being sold for legal necessity or for payment of antecedent debts. The plaintiff has set up at the argument a plea that it was being sold for general benefit of the estate. It is said that the defendant being a Government servant was not able to take care of the land and that he wanted to utilize the purchase price in purchase of houses in the town . of Shikarpur for rental purposes. The evidence shows that the land was looked after by defendant's cousin Tekchand, and that the land was fairly productive. No invest ment in the purchase of houses is made and we are, therefore, not in a position to assess the comparative benefit, that would have accrued to the estate. The question whether a transaction is for benefit of estate or not, involves the consideration of of something more than merely whether the purchase price paid is a good price; it involves the further question bf what is to be done with the purchase money. To sell a piece of land at a very good price would not be beneficial if the purchase money was to be invested in doubtful undertakings. A manager of a minor under Hindu law is not entitled to sell merely for the purpose of enhancing the value of the property of a minor or for increasing the minor's income, though it cannot be said that no transaction can be for the benefit of a minor which is not of a defensive character; Hem Raj v. Nathu Ramu A. I. R. 1935 Bom.295. It is therefore, clear that the defendant had no power to convey the interest of the minors in the. land in suit." Mr. Manghanmal for the appellant contends that as the minor sons of the respondent were not parties to the suit, and the appellant sought to enforce specific performance of the agreement of sale made by the respondent only, the trial Court was not called upon to decide the question of the validity of the alienation made by the respondent. But issue No. 2 specifically raises the question whether the respondent had agreed to sell the land in suit including the interest of the minors in the joint family property. It is not disputed by the appellant's advocate, that the ancestral right of the respondent in the property in suit was only a third undivided share in the property. In the present suit, as the appellant claims specific performance of the agreement of sale involving the right, title and interest of the minors, and seeks to bind the interest of the respondent's minor sons, the learned judge was right in going into the question of the validity of the alienation made by the respondent, and this was apparently does with the consent of both parties, judging from the wording of Issue No.

2. It is true that had the finding on Issue No. 2 been that the alienation made by the respondent bound the interest of his minor sons, the finding would not have been binding on the sons, but as the finding of the learned judge is against the validity of the alienation, the question of the rights of the respondent's minor sons does not arise. Mr. Manghanmal has relied upon certain observations made by Kumaraswami Sastri, J. in the Full Bench decision of the Madras High Court in Baluswami Aiyar v. Lakshmana Aiyar A. I. R. 1921 Mad.

172. At p. 620, Kumaraswami Sastri, J. observed: "Where a person sues for specific performance of an agreement to convey and simply impleads the party bound to carry out the agreement, there is no necessity to determine the question of the vendor's title, and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract, alleging grounds which under Hindu Law would bind their interest and enable the vendor to give a good title as against them and makes them parties, it is difficult to see how the question as to the right of the contracting party to convey any interest except his own can be avoided and a decree passed, the effect of which will merely be to create a multiplicity of suits." Mr. Manghanmal contends that the appellant had not alleged any facts in the plaint which, if proved, would under the Hindu law bind the interests of the respondent's sons, and that it was therefore unnecessary for the trial Court to go into the question of the binding character of the alienation in so far as it affected the rights of the respondent's sons. But as we have observed, in view of the admission of the appellant in para. 4 of the plaint and the vague character of the agreement for sale by which the respondent sought to convey his ancestral rights, that is to say, his one‑third undivided share in the property, it is not unreasonable to suppose that these two facts induced the appellant to have the question of the validity of the alienation in relation to the rights of the respondent's solos decided in the present suit. Mr. Manghanmal cannot therefore contend that the finding, of the trial Court upon this aspect of Issue No. 2 should be ignored, merely because the respondent's sons were not made parties to the suit. We think the decision of the Full Bench of the Madras High Court read as a whole supports the view, that where a plaintiff seeks to bind the interests of the other. co‑parceners as in this case by asking for specific performance of the agreement of sale of the joint property agreed to be sold by the manager of the joint family, it matters not if the other co‑parceners have not been impleaded, for the question of specific performance of an agreement such as the present depends upon the application of section 15 Specific Relief Act. The learned judges of the Madras High Court observed: " We think the words of the‑ section (section

15. Specific Relief Act) apply‑ where a member of an undivided family agrees to sell part of the joint property in which he has only a share and the present case is a particularly plain one, because according to the plaintiff's own evidence defendant No. 1 agreed to get the other members of the family to execute the sale‑deed. Further, the‑contract has been decided in the present suit not to be binding on the other members of the family and to decree specific performance against defendant No. 1 only would be merely encouraging useless litigation." In view of the finding of the trial judge in the case before us that the agreement of sale was not binding on the minor sons of the respondent, it would, in our opinion, in the words of the learned Judges in Nagiah v. Venkatarama Sastrulu A I R 1914 Mad. 456 ; "be encouraging useless litigation." There is another passage in the judgment of the Full Bench of the Madras High Court which tends to support the view that for the purposes of the application of section 15, Specific Relief Act, it is sufficient if it is proved that the contract for sale made by a manager of the Joint Hindu Family purports to convey the family property in which his sons are co‑parceners, and it is not proved that the alienation agreed to be made was for object sanctioned by Hindu Law. It reads thus: "Where the person contracting is the father or managing member of the family, he stands in a fiduciary relationship to the other members (Annamalai Chetty v. Murugesa Chetty 8 Sar. 523 (P C), at p. 55, Sahuram Chandra v. Bhup Singh A I R 1917 P C 61, and his contract to sell the entire item of joint family property for purposes not binding on them is a breach of duty, and I do not think the Court ought to compel execution of a sale‑deed in such cases of the entire item of property leaving it to other members to incur the expense and go through the trouble of filing a suit to protect their interests. (See Gurusami v. Ganapathia 5 Mad. 337 (F B), and Baikuntha Barik v. Shib Dass 2 C L J

321. There is, however no objection to the share of the vendor being ordered to be conveyed in cases where he can dispose of his share as he will then only be exercising his right without detriment to anybody else." The question referred to the Full Bench of the Madras High Court in Baluswami Aiyar v. Lakshmana Aiyer A I R 1921 Mad. 17 2, was: "Where the managing member of a joint Hindu Family enters into a contract to sell an item of family property, and that contract is not proved to be binding on the other members, can specific performance of it be decreed against him, and if, so, on what terms ?" Kumaras wami Sastri, J. delivering the judgment of the Full Bench answered it thus. " My answer to the question is that section 15, Specific Relief. Act, applies to cases covered by the order of reference and that specific performance cannot be granted of the contract so as to direct execution of a conveyance of the entire property, and that it is open to the purchaser to get specific performance so far as the share of the vendor is concerned oil payment of the consideration agreed upon without any abatement." Mr. Manghaumal has next contended that assuming section 15, `Specific Relief Act, applies, the trial judge should have granted a limited decree in conformity with the decision of the Full Bench of the Madras High Court to which we have referred. It appears, however, that at the trial the "appellant made a statement in writing through his Advocate to the following effect ; " I am not prepared to purchase the share of Kishinchand only in the property agreed to be sold for the entire purchase price of the land without being duly compensated for the loss so caused. In view of this statement, the trial Court was justified in refusing to grant limited decree for specific performance. In the result we affirm the judgment and decree of the trial Court and dismiss the appeal with costs. K.M.A Appeal dismissed.