Lakshmikanta Jha, C.J:— This is an appeal by the plaintiffs from a decree of the Subordinate Judge at Darbhanga, dated the 24th May, 1946.
The appeal arises out of a suit for specific performance of an agreement, or, in the alternative, for recovery of possession of the property in suit on the ground that the court sale of the property held on the 4th March, 1940, is vitiated by fraud.
Originally one joint family firm, Paliram Parma Nand, was impleaded as defendant first party, and one Ajodhya Prasad along with others was impleaded as defendant second party. On the death of Paliram on the 22nd April, 1945 (during the pendency of the suit) his minor son, Kissen Lal Daruka, and other members of his family were substituted in his place and were impleaded as defendants first party. Separate written statements were filed by the members of the family of Paliram, and it is common ground that Pali ram's son alone is interested in the property in suit because on partition, among the members of Paliram's family the property in suit was allotted to Paliram's share.
Paliram filed his written statement and on his death his minor son, the present defendant no. 1, adopted the written-statement of his father. It may be stated here that the relief is claimed only against defendants first party and not against defendants second party and the contest is only by the present defendant no. 1, hereinafter to be referred to as the defendant.
The material facts of the case relevant to the points for consideration are these: Paliram was the karta of his joint family which owned the firm Pali Ram Parma Nand Paliram obtained a money decree against the plaintiffs in the name of the firm ton the 22nd December, 1933, for a sum of about Rs. 15,000. Execution of the money decree was taken out, being Execution Case no. 12 of 1939, in the court of the Additional Subordinate Judge of Darbhanga. The property in suit measuring 71 bighas and odd was attached on the 21st July, 1939. An objection was taken by the defendants second party on the 24th July, 1939, under Order 21, rule 58, of the Code of Civil Procedure, in respect of a portion of the attached property, and was numbered as Miscellaneous Case no. 38 of 1939. It is now conceded that the defendants second, party were really farzi-dars of the plaintiffs judgment-debtors. Another objection was taken by the plaintiffs judgment-debtors on the 20th November, 1939, under section 13 of the Bihar Money lenders Act and was numbered as Miscellaneous Case no. 59 of 1939. While the two miscellaneous cases were pending a joint petition, dated the 2nd December, 1939, (exhibit 2), was filed on behalf of the contesting parties in Miscellaneous Case no. 38 of 1939, praying for two weeks' time on the ground that there was a talk of a compromise between the judgment-debtors and opposite parties, namely, the plaintiffs and the defendants first party in the present suit. The court, as it appears from the order-sheet (exhibit 6), adjourned the case to the 9th December, 1939, for hearing, and the parties were required either to file a compromise petition or come ready on the date fixed. On the 7th December, 1939, there was an agreement between the parties (hereinafter, to be referred to as the first agreement) through the intervention of Mr. Dharanidhar (P.W 1 examined on commission), a pleader of the Darbhanga bar. The terms of this agreement were not, however, reduced to writing. There is ??? as regards some or the terms ??? the ??? trust party. From the evidence or ??? who is relied upon ??? it appears that it was settled between the parties that Rs. 7,500 would be paid in full ??? of the decretal amount and a further sum or Rs. 1,000 would be paid by the plaintiffs to ??? for payment of arrears or rent in respect of the property under, attachment for which three rent suits were pending in the 1st court of the Munsif of Darbnanga. Thus, in all, Rs. 8,500 was to be paid by the plaintiffs to the defendants first party under the agreement, for which the plaintiffs were to execute a bai maiadi kebala (a deed of conditional sale) in favour of Paliram, because the plaintiffs could not manage to pay the sum in cash. I may state here that, according to the plaintiffs' case, it was settled that if the plaintiffs paid Rs. 8,500 to the defendants first party within a period of six years, the latter would execute a deed of reconvevance in favour of the plaintiffs. The case of the defendant no. 1, however, is that the plaintiffs were to pay Rs. 8,500 in cash before the 5th December, 1939 (written statement 5 ‘ka’) and he denies that the period fixed for the reconveyance was six years. Mr. Dharanidhar in his evidence does not support this part of the defendant's case. Another, term of the first agreement, according to the plaintiffs, was that the parties were to give up making pairvis in the execution case and the two miscellaneous cases and the same would be allowed to be dismissed for default. From the order-sheet (exhibit 6) it appears that the plaintiffs took no steps and the two miscellaneous cases were dismissed for default on the 9th December, 1939, but the defendants first party proceeded with the execution.
The plaintiffs' case is that according to the terms of the agreement defendants, first party paid to the plaintiffs Rs. 127-8-0 for purchase of stamp and, in fact, on the 12th December, 1939, the plaintiffs purchased the stamp through plaintiff no. 1 from the Treasury at Darbhanga for the execution of the deed of conditional sale, and on the 17th December, 1939, Shib Chandra Prasad (D.W 1), a servant of the defendants first, party, wrote the contents of the deed on the aforesaid stamp paper and the plaintiffs put their signatures thereon, and thereafter the document was handed over to the defendants first party. Registration of the document could not be completed because there was a second appeal (Second Appeal no. 569 of 1939) pending in the High Court in which the title of Ajodhya Prasad, one of the defendants second party was in dispute, and the defendants first party wanted to wait till the title of Ajodhya Prasad was finally decided by the High Court. The allegation of defendant no. 1 in his written-statement is that the bai maiadi kebala (deed of conditional sale) was not executed by the plaintiffs and the first agreement was not given effect to because the defendants second party refused to execute the kebala. I have already stated that the defendants, first party proceeded with the execution. The property in suit was put up to court sale on the 4th March, 1940, and Paliram purchased it for a sum of Rs. 2,000 and took delivery of possession on the 24th December, 1940. The plaintiffs' case is that the defendants first party committed an act of fraud in proceeding with the execution and getting the property in suit sold at court-sale. Accord me to them, they got information of the sale on the 24th December, 1940, when delivery of possession was taken, and thereupon plaintiffs nos. 3 and 10 went to Mr. Dharanidhar and informed him of the fraud committed by the defendants first party. Mr. Dharanidhar thereupon sent for Permanand, the younger brother of Paliram, and again through his intervention a fresh agreement was arrived at between the parties on the 3rd January, 1941 (hereinafter to be referred to as the second agreement). According to the second agreement, it was agreed that on payment by the plaintiffs of a sum of Rs. 8,500 to the defendants first party within a period of three years the defendants first party would execute a deed of reconveyance in favour of the plaintiffs in respect of the property in suit. It was further agreed that till the payment of the aforesaid money the defendants first party would remain in possession and occupation of the disputed property. Defendant no. 1 now admits that there was a second agreement but denies that the term fixed for reconveyance was three years. The plaintiffs' case is that according to the terms of the agreement they went in the month of June, 1943, and several times thereafter, to the defendants first party with Rs. 8,500 and requested them to accept the money and execute a registered deed of reconveyance and relinquish possession of the properties in suit and put the plaintiffs in possession thereof, but the defendants first party declined. They have, therefore, instituted the present suit, claiming specific performance or, in the alternative, recovery of possession on the ground of fraud as already stated.
The learned Subordinate Judge dismissed the suit. He did not record his finding with regard to the first agreement, but with regard to the second agreement he found that it is highly improbable that Parmanand independently of Paliram's consent would have agreed to the payment being made within three years from the date of the subsequent agreement. He also found that the story of tender as alleged by the plaintiffs is false and lastly, he found that, defendant no. 1 being a minor decree for specific performance could not be made in favour of the plaintiffs. In view of these findings, he dismissed the suit.
Three questions arise for determination in this appeal:—
(1) Whether there were agreements as alleged by the plaintiffs.
(2) Whether specific performance can be granted in respect of the second agreement, if any.
(3) Whether a suit for setting aside the auction sale, dated the 4th March, 1940, in execution case no. 12 of 1939, on the ground of fraud is maintainable, in view of Order 21, rule 92, of the Code of Civil Procedure.
As regards the first question, there is, as already stated, no document embodying the terms of settlement arrived at between the parties. Therefore, the plaintiffs have to rely upon the oral evidence as well as the admitted circumstances and resulting probabilities in support of their case. The learned Subordinate Judge has not recorded his finding with regard to the first agreement. But, in my opinion, it is necessary to find whether there was an agreement between the parties on the 7th December, 1939; because the two agreements are inter-connected, and if it is found that there is ample evidence in support of the plaintiffs' story of the first agreement, the necessity entering into the second agreement becomes highly probable. The defendant totally denied the existence of the second agreement in his written statement. At the hearing, however, it was admitted that theer were two agreements, but the parties differ as to the terms.
The plaintiffs examined three witnesses in support of their case. P.W 2 is plaintiff no. 10 and 3 P.W 9 is plaintiff no. 3. Their evidence is that there were two agreements—the first agreement was before the court sale and the second after the delivery of possession. Their statement is substantially corroborated by the evidence of Mr. Dharanidhar (P.W 1), who is a pleader of the Darbhanga bar, and who is, according to both parties, a man of high integrity. The story set up by the defendant is that one of the terms of the first agreement was that the plaintiffs would pay Rs. 8,500 in cash by the 5th December, 1939, and on their failure to pay Rs. 8,500 by the 5th December, 1939, the court sale took place. In my opinion, the defendants' story is highly improbable and unworthy of credence. It is disproved by the sale-deed (exhibit 1) which was it scribed by their own servant Shib Chandra (D.W 1) on the stamp paper purchased long after the 5th December, 1939. The order-sheet (exhibit 6) shows that the plaintiffs gave up making pairvi in the two miscellaneous cases and they were allowed to be dismissed for default. It seems to me most unlikely that the plaintiffs would suffer the miscellaneous cases to be dismissed for default and knowingly allow the defendants to proceed with the execution case. The property in suit 71 bighas in area was purchased by Paliram for Rs. 2,000 only and admitted no application was filed by the plaintiffs under Order 21, rule 90, nor was any other step taken by them for getting the sale set aside. It seems to me highly importable that they would have failed to make an attempt to get the sale set aside. Mr. Dharanidhar in his evidence says.
He further states
“It is not a fact that there was any agreement that if the money is not paid in cash by the 5th December then the plaintiffs would not be entitled to get any remission”.
Thus, in view of all these facts and circumstances I am of opinion that there was an agreement that the parties would allow the execution proceeding and the two miscellaneous cases to be dismissed for default, and the defendants' conduct in getting the plaintiffs' property sold in breach of one of the terms of the agreement amounted to an act of fraud on the plaintiffs.
The defendant's story that there was no agreement that the deed of reconveyance would be executed by the defendant in favour of the plaintiffs within a period of six years also seems to be incredible. It is admitted that stamps were purchased on the 12th December, 1939; Shib Chandra (D.W 1) a karpardaz of the defendants, faircopied the draft on the stamp paper (vide exhibit 1). There is difference between the parties as regards the custody of this document. According to the plaintiffs, the document was banded over to the defendant after the execution and it came into their hands through the Collectorate when an attempt was made by the defendant for the ??? of the price of the stamp whereas, a ??? the defendant's version, the document always remained with the plaintiffs. It is not necessary for our present purpose to go into this question and see which version is true but I would remark passing that the plaintiffs' version is supported on the admission in paragraph 10 of the written-statement of the defendant that the petition for refund was written by Shib Chandra (D.W 1). It is an admitted fact that this document was filed along with, the plaint. The writing on this document admittedly of Shib Chandra. It was not suggested till the stage of the arguments that there was any interpolation. On the very first page of the document it is stated in the third column “Conditional sale-deed for a term of six years” and attention is drawn to this term in paragraph 5 of the plaint. Therefore, in view of all these facts and circumstances I am of opinion that under the first agreement the deed of conditional sale (bai maiadi kebala) was to be executed for a term of six years and a deed of reconveyance was to be executed by the defendants first party in favour of the plaintiffs if the latter paid Rs. 8,500 to the plaintiffs within six years of the date of execution of the document.
The plaintiffs' story is that the deed of conditional sale (exhibit 1) was duly executed by them, and I see no reason to disbelieve this story of the plaintiffs. They say that the delay in the registration of the document was due to the fact that a second appeal (Second Appeal no. 569 of 1939 decided on the 3rd May, 1940) was pending in the High Court in which the title of the second party was involved, whereas the defendants' version is that the first agreement was not given effect to because the defendants second party refused to execute a deed of conditional sale. I think the plaintiffs' story regarding the delay in the registration is more probable. The sale deed (exhibit 1) having been executed in respect of properties specified therein, any delay in the registration of the document would not be for the benefit of the plaintiffs, because the property in suit which was already attached would be liable to be unconditionally knocked down, to the highest bidder. According to the defendant's version, the defendants second party were also to execute a sale-deed, and according to D.W 1 (Shib Chandra), Rs. 97 was advanced to the plaintiffs for purchase, of stamp necessary for the execution of the sale-deed by the defendants second Party. Therefore, if is likely that the defendants first party persuaded the plaintiffs to wait for the registration of the document till the title of the defendants second party was finally decided by the High Court in the second appeal pending there. The court-sale was actually held on the 4th March, 1940, and duly confirmed in the absence of any objection on the 3rd April, 1940, and the second appeal (Second Appeal no. 569 of 1939) was decided on the 3rd May, 1940. Therefore, the circumstances favour the story of the plaintiffs regarding the delay in the registration. After the court-sale was duly confirmed, title to a very valuable property already passed to the defendants first party, and, therefore, it is quite likely that they wanted to put off the registration on some pretext or other as alleged by the plaintiffs. In view of these probabilities and actual evidence in the case, I am of the opinion that there was an agreement on the 7th December as alleged in the plaint.
The plaintiffs' story, regarding the second agreement between the parties after the court-sale seems to be correct. Mr. Dharanidhar in his evidence says that two of the plaintiffs went to him and complained that against the terms of the agreement the defendants first party had got the property sold and had also got delivery of possession. He further says that he sent for Parmanand Babu, younger brother of Paliram Babu, sometime about December, 1940, and Parmanand. Babu said
“they were ready to reconvey the property as agreed to formerly and that the sale and delivery of possession had made no difference”.
He (Mr. Dharanidhar) also says that
“the defendants first party were ready to execute a deed of reconveyance as soon as the amount was paid”.
Parmanand Babu has been exam in the in the case. He admits that he told Mr. Dhardnidhar that
“if the plaintiffs were willing to pay down the entire money I could speak to Pali Babu and request him to went the money. I approached Pali Babu who said that he could accept Rs. 8,500 if paid to him but he could not be agreeable, to give up possession tilt the money was paid”.
Therefore, in my opinion, Parmanand also supports the plaintiffs' story that there was an agreement by Paliram for reconveyance of the property if Rs. 8,500 was paid to him in cash. The execution of a deed of conditional sale by the plaintiffs became unnecessary by reason of the court-sale. The terms of the second: agreement were in substance the terms of the first agreement, with such modifications as were necessitated by reason of the change of circumstances arising on account of the court-sale and no question of any fresh agreement arose in the case.
Under the second agreement the plaintiffs' case is that it was agreed between the parties that the defendants first party would execute a deed of reconveyance within a period of three years from the date of the second agreement, which took place on or about the 3rd of January, 1941. The learned Subordinate Judge has disbelieved this part of the plaintiffs' case, mainly on the ground that in his opinion P.W 9 (Plaintiff no. 3) stated in his examination-in-chief that it was agreed in the presence of Mr. Dharahidhar that if the money was paid within three years from the date of the subsequent agreement, the money would be accented the opinion of the learned Subordinate Judge. Mr. Dharanidhar does not support this part of ??? case. I have rad the evidence of P.W 9 (plaintiff no. 3) very carefully. His statement is
“Dharani Babu called Parmanand who agreed to accept the money to was also agreed that the money if paid within three years from the date of subsequent agreement the money would be accepted”.
From this statement it does not follow that the witness intended to say that the agreement regarding the term of three years was arrived in the presence of Mr. Dharanidhar. In an earlier part, of his evidence P.W 9 had stated that
“the agreement was between plaintiff no. 10 and myself on one side and Parmanand in the presence of Dharani Babu”,
But here he does not say that the term of three years was settled in the presence of Mr. Dharanidhar. Reading his evidence as a whole it is clear that the witness never intended to convey this meaning. The learned Subordinate Judge does not seem to be right in reading into the evidence of P.W 9 that he said in the examination-in-chief that a term of three years was settled in the presence of Mr. Dharanidhar and he had to change this statement under the stress of cross-examination. There was merely an ambiguity in his statement in examination-in-chief, and as soon as he was questioned about it in cross-examination, he clarified the matter by saying
“the period of three years was not settled in the presence of Dharani Babu”.
On a consideration of all the facts and circumstances of the case I am of opinion that there was an agreement between the parties some time in the first week of January, 1941, after the court-sale, and it was agreed that the defendant would execute a sale-deed in favour of the plaintiffs on payment of Rs. 8,500, within three years of the date of the agreement. I may mention here that under the first agreement plaintiffs could claim reconveyance by 1945, but under the second agreement they could claim reconveyance only by 1944. Therefore, the statement of the plaintiffs that the deed of conveyance was to be executed within three years is against their own interest, and there no reason why we should not accept this story when in all material particulars their case is strongly supported by the evidence of Mr. Dharanidhar, whose integrity or honesty was not Questioned by either party and on whose statement much reliance has been placed by both parties before us.
On a careful consideration of the evidence and circumstances of the case I am satisfied that the plaintiffs have proved that there were two agreements between the parties as alleged by them, and there is ample evidence to show that the plaintiffs have succeeded in proving that on payment of Rs. 8,500; at any time within three years from the date of the second agreement they are entitled to claim specific performance of the contract.
The next question that arises is whether there was any tender of Rs. 8,500 by the plaintiffs to the defendants first party in June, 1943, as alleged by them and there was refusal by the defendants to accept the same. Mr. Dharanidhar says that he advised Kesho Babu (one of the plaintiffs) to arrange money for cash payment and get the property reconvened. He further says
“I fell ill in December, 1942, and Kesho Babu came to me after my illness complaining that he was ready with the money but Babu Paliram was not willing to execute a reconveyance. I express my inability to help him on account of my illness”.
P.W 2 says that money was tendered to Paliram and he refused to accept it and he is supported in his evidence by P.Ws 10 and 13 and we see no reason to disbelieve their testimony. In view of all these facts there is no reason why I should not accept the plaintiffs' evidence of tender. But once the agreements are proved the question of tender is not material at all when the plaintiffs have come to court within three years of the second agreement.
Now the question is whether specific performance of the second agreement can be enforced against the present defendant no. 1, who is a minor son of Paliram. I have already stated that the suit was originally instituted against the joint family firm: and the minor son of Paliram, the present defendant no. 1, was brought on the record by substitution on Paliram's death, during the pendency of the suit. Therefore, the point for consideration is whether a decree for specific performance could be made against the joint family firm if Paliram had been alive, and secondly, whether such a decree can be made against his minor son who has been brought on the record after his death.
In a suit by a promisee for enforcement of specific performance of a contract it is necessary that the parties should have the capacity to contract; and if the contracting parties are Hindus and the agreement is entered into by the karta or kartas of a joint Mitakshara Hindu family, it is further necessary for the plaintiff to prove either legal necessity or benefit to the estate.
If may be stated here that in the plaint there is no allegation of either legal necessity or benefit to the estate, nor is there any allegation in the written-statement filed by Paliram which was subsequently adopted by his minor son, the present defendant no. 1, after the death of Pali ram that the contract is unenforceable for want of at necessity or benefit to the estate, nor was any issue raised on the point. But it was argued at the bar on behalf of the respondent that a decree for specific performance of the contract entered info by Paliram cannot be passed against defendant no. 1 who is a, minor, because the contract on the very face of if was adverse to his interest. This argument is founded on the observation of the learned Subordinate which runs no follows:—
“It has been unreel that the agreement arrived at is not enforceable at law but even if it be presumed that, it was capable of being enforced in that case the contract could not be enforced against defendant no. 1 who is a minor. It, may have been one thine for Paliram, his father, who was a minor to have, agreed to sacrifice some of his interest, but it is extremely doubtful if a decree for specific performance of a contract could be passed against the defendant no. 1, who is a minor, in respect of a contract which on the very face of it was adverse to his own interest.”
I think this argument is not sustainable. If is true that the karta's power to alienate the point family property is under the Hindu law a limited and qualified power. But an alienation by a karta, even if not warranted by the necessities of the family, is not void ab initio. The plaintiffs came forward with a clear case that the property in suit belonged to them and the same had passed into the hands of the defendants by reason of a fraudulent court-sale; they stated the relevant facts and simply asked for the restoration of their property by execution of a sale-deed under the terms of the compromise arrived at between the parties at the instance of Mr. Dharanidhar. The defendant in his written-statement did not take the plea that the property in suit formed part of his joint family property and specific performance could not be granted for want of legal necessity or benefit to the estate. It was necessary for the defendant to allege, in the first place, that the property in suit forms Dart of his joint family property. If only such an allegation had been made, it would have been necessary for the plaintiff to allege legal necessity or benefit to the estate. Under Order 8, rule 2, of the Code of Civil Procedure, the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law. If such a plea had been raised in the defence, the plaintiffs, if so advised, might have filed, with the leave of the court, a written statement pleading legal necessity or benefit to the estate, and such written-statement might have formed part of the plaintiffs' pleading. On the pleadings as they stand the question of legal necessity or benefit to the estate did not arise. In my opinion, it must be taken to have been admitted that the agreement was not vitiated for want of legal necessity or benefit to the estate. It is quite probable that the plea was not raised because the act of Paliram in entering into the second agreement was considered a prudent act beneficial to the estate. However, in my opinion, the learned Subordinate Judge does not seem to be right in his view that the contract on the face of it is adverse to the minor's interest. Paliram contracted to sell for Rs. 8,500 a property which he had purchased at court-sale for Rs. 2,000. This was obviously a prudent act on the part of Paliram and there was a clear benefit to the family. Besides Paliram knew that the sale had been obtained by fraud. Therefore, it was considered by Paliram a prudent act to put an end to the litigation and not to take the risk of the sale being set aside by an application under Order 21, rule 90, or by some other appropriate proceedings. It may be observed that the property in suit belonged to the family of the plaintiffs. The sale was brought about by the fraudulent conduct of Paliram. The executing court conducting the sale was not informed of the circumstances under which the plaintiffs had given up pairvi in the two miscellaneous cases, nor was the court informed of any of the terms of the contract. Therefore, in view of all these facts and circumstances I think it cannot be said that Paliram or his brother Parmanand, who according to the allegation in the plaint, carried on the court affairs of the family of the defendants first party, did any imprudent act in entering into either the first or the second agreement or that any of these agreements was not justified in the interest of the estate of the defendants. Therefore, the contract can be challenged only on the ground of lack of mutuality.
The fundamental rule of equity is that a contract will not be specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for specific enforcement of it. Therefore, a contract to be specifically enforced by the court, must as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other. The Specific Relief Act does not anywhere expressly repudiate the doctrine of mutuality. On the contrary, the language used in respect of the last nine illustrations of clause (b) of section 21, of the Specific Relief Act, supports the position that the doctrine is part of the Indian law. The doctrine of mutuality was judicially recognized so far as India is concerned by their Lordships of the Judicial Committee in the case of Mir Sarioarjan v. Fakhruddin Mahomed Chowdhuri(1) and since then the following propositions are firmly established:—
“(1) A contract entered into by a minor being void, an agreement entered into by him either for sale or for purchase of immoveable property cannot be specifically enforced either by or against him.
(2) A contract either for sale or for purchase of immoveable property entered into by the guardian of a minor or his manager cannot be specifically enforced either on his behalf or against him.”
In either case there being lack of mutuality the court cannot order specific performance of a contract even if the transaction be beneficial to the minor.
In the case before us the joint family was sued. Admittedly Paliram was the karta of the joint family. The position of the karta is sui generis. He represents the family and has power as karta of making contracts, giving receipts and compromising or discharging claims ordinarily incidental to the family business (38 I.A, 45 at 51). He can sue and be sued in a representative capacity. In the case of Sheo Shankar Ram v. Jaddo Kunwar(2) their Lordships of the Judicial Committee have held that “the managers of a joint Hindu family so effectively represent all other members of the family that the family as a whole is bound”. While discussing the doctrine of res judicata Lord Phillimore, in the case of Lingangowaa v. Basgngowda observes as follows:—
“It is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an action be his guardian before; and in each of these cases, therefore the Court looks to the explanation 6 of section 11 of the Code of Civil Procedure, 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest or if they are majors, with the assent of the majors.”
It was pointed out in the case of Lalchand Thakur v. Seogobind Thakur by Chatterji, J. that in a suit against a joint Hindu family the karta may effectively represent the other members of the family even though he is not described as such. Recently in the case of Ramsewak v. Ramaprasad(3), which related to the power of a manager to refer a certain dispute to arbitration, Sinha, J. has observed that it is competent to the father of a joint Hindu family in his capacity of the managing member of the family to refer to arbitration the partition of the joint family property, and the award made on such a reference, if in other respects valid, is binding on the sons and grandsons, even if some of them happen to be minors.
Therefore, in my view, Paliram effectively represented all the members of the family including his minor son, and the contract entered into by him as karta of the joint family could be specifically enforced against him had he been alive.
If a decree had been passed against him, it would have been binding on his minor son as well because there was no lack of mutuality. This view gets support from the observation ??? in one case of Dhapo v. Ram Chandra where ??? observes as follows:—
“In the case before us, it was open to the plaintiffs to have sued Reoti alone for the specific ??? or the contract as representing the joint family. It a decree had been passed a would have been binding on the other member of the joint family, the minor”. (Reoti was the karta and managing member of the family consisting of himself and his minor brother)
In my opinion, there is no change in the legal position simply because the present defendant, who was not originally impleaded in the suit, was substituted for Paliram. The law is that want of mutuality to be fatal to a claim for specific performance must-exist at the time the action is brought. This view gets support from a passage in the case of Eastern Counties Railway Company v. Henry Hawkes where Lord Campbell is reported to have stated the law thus:—
“But I am of opinion that whereas, in considering the validity of the agreement, the proper time to regard is the time when it was entered into—as to the specific performance, regard is to be had to the state of things when the bill was filed. No authority has been cited in support of the position, that the decision upon a bill for a specific performance is to depend upon what has happened between the filing of the bill and the day when the decree is to be pronounced; and it would be strange if the plaintiff, being entitled to what he prays for when he files his bill, could be defeated by the chicanery of the defendant in vexatiously resisting the suit.”
The same view was taken in the case of Narayana Chetty v. Muthiah Chetty where the law is stated by Ramesain, J. as follows:—
“Where a contract is by a manager on behalf of a family, and for the benefit of the family and the manager dies, it can be enforced against the survivors when they are all majors; Venkateswara Aiyar v. Raman Nambudri. Should it make any difference that some of the survivors are minors, and does the case of Mir Sarwarjan v. Fakhruddin Mahomed Chowdury support such a distinction? The matter is res integra and I am inclined to answer the above queries in the negative.”
Therefore, in my opinion, in a suit instituted against a joint family a decree for specific performance can be passed and it would be binding on all the other members of the joint family, including a minor coparcener, if the transaction is found to be warranted by legal necessity or benefit of the estate. It has been held by a full bench of this Court in the case of Hari Charan Kuar v. Kaula Rai(4) that there is no lack of mutuality if the contract is entered into by the karta simply by reason of the fact that a minor coparcener is impleaded in the action. But it has been held that the suit for specific performance cannot be decreed in the absence of proof of legal necessity or family benefit. Chamier, C.J, states the law thus:—
“(1) The interest of a member of a joint Hindu family in the family property is not individual property at all. The manager of such a family is not an agent of the other members nor is he a mere manager. He is much more like a trustee for the other members.
(2) I apprehend that the decisions of their Lordships in the cases of Mohan Bibee v. Dharasu Dass Ghose and Mir Sarmarjan v. Fakhruadin do not apply to contracts made pay the managing member or a joint Hindu family nor family, necessities or for the benefit of the family i.e, contracts made by the managing members which bind the minor members of the family. Such contracts can be enforced on behalf or the ramify, by the persons who make them and nothing in the decisions or their Lordships when requires us to hold that such contracts cannot, be enforced against the family. Contracts made not of minors put by persons who have power to make contracts on ??? joint family at not appear to come within those decisions. I am not prepared to ??? this suit for specific performance out the ground that the contract ??? mutuality having been made on or on behalf or minors who are not competent to contract.”
In the case of Dhapo v. Ram Chandra where the managing member along with his minor brother was impleaded, the Allahabad High Court followed the view taken in the case of Hari Charan Kuar v. Kaula Rai. After a review, of the case law on the point the Nagpur High Court has recently adopted in Ramrao Shamrao v. Suganchandra(5) the view taken by the full bench of this Court in 2 P.L.J, 513.
I have already held that the second agreement was entered into by Paliram for the benefit of the estate and there was no lack of mutuality simply because his minor son was brought on the record by substitution on the death of Paliram. Therefore, the plaintiffs are entitled to a decree for specific performance against the present defendant no. 1.
It may be observed that the plaintiffs claimed an alternative relief that if for some reason a decree for specific performance of contract be not possible, then it may be adjudged that the court-sale help on the 4th March, 1940, in Execution Case No. 12 of 1939 is entirely fraudulent, illegal, inoperative, useless and ineffective and the defendants first party neither have nor can have any title on the basis therefor, and that the plaintiffs are entitled to get khas possession together with mesne profits. This point gives rise to the consideration of the third question raised before us, namely, whether a suit for setting aside the auction sale on the ground of fraud is maintainable in view of Order 21, rule 92, clause (3) of the. Code of Civil Procedure. I have already held that the plaintiffs an untitled to a decree for specific performance and in that view of the matter consideration of this question becomes unnecessary.
In the view that I have taken the appeal must be allowed and the judgment and decree of the Subordinate Judge set aside.
It is therefore ordered that upon payment into court of the purchase money Rs. 8,500 on or before the 22nd November, 1950, or within such further time as the court below, at its discretion, may allow, the defendant no. 1 do execute and register a proper deed of conveyance of the properties in suit and do put the plaintiffs in possession thereof. The appeal is allowed accordingly, with costs throughout.
Reuben, J.:— I agree.
K.D
Appeal allowed.