1. This appeal by defendant No. 2 arises out of a suit for specific performance of an agreement dated the 23rd December, 1947, executed by defendant No. 1. The facts giving rise to this litigation are these: The plaintiff alleged that defendants 1 and 2 were joint and defendant No. 1 was the karta. They owned a house bearing holding No. 23 on the Krishna Prakash Road in the town of Gaya. They required money for the treatment of defendant No. 2 and for other purposes and they intended to execute a permanent lease of that house. The plaintiff agreed to take the lease of the house on payment of Rs. 2000 as nazrana and Rs. 180 as annual rent.

2. On the 23rd December, 1947, defendant No. 1 executed an agreement, received Rs. 500 out of the amount of nazrana and stipulated to execute a formal lease in respect of the house within three months of that date. Defendant No. 2 was then a minor, but the transaction was for his benefit and he was bound by that agreement. On the 6th January, 1948, defendant No. 1 took a further sum of Rs. 150 for paying Government revenue and cess and executed another agreement with similar terms. The plaintiff asked defendants Nos. 1 and 2 to execute the lease, but they avoided it which gave a cause of action for the present suit.

3. Defendant No. 2 contested the suit on grounds inter alia that he was not joint with defendant No. 1 and defendant No. 1 was not the karta. It appears that Raghubans Dubey and Harbans Dubey were brothers. Ramesh Chandra Duivedi, defendant No. 1, is the son of Raghubans Dubey, whereas Bageshwari Prasad Duivedi, defendant No. 2, as the son of Harbans Dubey. He alleged that Harbans Dubey separated from defendant No. 1 in 1944 and the two lived separately in two different quarters of Gaya. Harbans Dubey died in 1945, and since then defendant No. 2 lived mother the guardianship of his mother who looked after his affairs.

4. Defendant No. 1 and defendant No. 2 divided the ancestral properties by metes and bounds in 1948 by a registered deed of partition. He further averred that the house in question belonged originally to one Munni Lal Tewari, who made a gift of it along with other lands to his wife Thakure Kuar. Munni Lal Tewari built a temple and installed idols. After his death his widow executed a registered deed of danpatra dated the 20th January, 1872, in favour of the idols, and she dedicated the house in question to the idols for the performance of religious rites.

5. Nandan Dubey, brother of Thakure Kuar, was the Shebait, and the defendants were the descendants of Nandan Dubey. It was thus urged that the house did not belong to the defendants, and, on the other hand, it belonged to the idols. A further plea was taken that he was not ill, and there was no necessity at all for borrowing money and executing the agreements in question. The written statement of defendant No. 1 was rejected as it was filed after at long delay.

6. The Munsif held that defendants 1 and 2 were joint at the time of the agreements, the house in suit was not a debottar property, and the deeds of agreement were genuine, for consideration and legal necessity. He accordingly decreed the suit directing the defendants to execute the mukarrari patta by the 15th April, 1956, and the plaintiff was to deposit the balance of the nazrana by that date. On appeal by defendant No. 2 the Subordinate Judge affirmed these findings and dismissed the appeal. Defendant No. 2 has thus preferred this appeal.

7. It appeared on the first occasion when this appeal was heard that there was no proper consideration of the evidence and the circumstances regarding the question of legal necessity for the execution of the two agreements and thus the lower appellate Court was directed to deal properly with the evidence already on the record and record a finding as to whether the two agreements executed by defendant No. 1 were for legal necessity or benefit of the estate owned by the two defendants.

8. The learned Subordinate Judge has dealt with the matter, considered the various necessities alleged in the two agreements, and has recorded a finding that the agreements were neither for legal necessities nor for the benefit of the estate. The necessities mentioned in the agreement dated the 23rd December, 1947, were that money was required for the medical treatment of defendant No. 2 and Rag Bhog.

9. It was alleged that defendant No. 2 suffered in 1947 from tuberculosis of the spine and for his treatment money had to be borrowed. On a consideration of the evidence the learned subordinate judge found that there was no satisfactory evidence to establish that defendant No. 2 suffered from that disease in 1947, when the said agreement was executed, and the plaintiff thus failed to prove that it was necessary to take a loan for any treatment of defendant No. 2. Dealing with the question as to whether money was required for the Rag Bhog of the deities, the Subordinate Judge held that the evidence was not satisfactory to show that the defendant stood in need of money for the Rag Bhog of the deities either in their house, or the idols installed in the temple.

10. The documentary evidence led to the conclusion that there was sufficient income for the maintenance of the idols of the temple. The plaintiff thus failed to prove the two items of necessities mentioned in the first agreement dated 23rd December, 1947. A sum of Rs. 150 was taken for the payment of the Government revenue, and this is the necessity mentioned in the second agreement dated the 6th January, 1948. The Subordinate Judge dealt with the evidence and held that the plaintiff failed to prove this item of necessity as well.

11. Having regard to these circumstances, he rightly came to the conclusion that the deeds of agreement were neither for legal necessities nor for the benefit of the estate. This finding is against the plaintiff, and although an objection to the finding has been filed out of time, at has not been pressed. The finding is based on a proper consideration of the evidence, and it cannot be reversed in this appeal.

12. The other question in the case was as to whether the defendants were joint or separate. The plaintiff alleged that they were joint and defendant No. 1, was the Karta, whereas defendant No. 2 asserted to the contrary. The Courts below have considered the evidence and have come to the conclusion that defendants 1 and 2 were living in a state of jointness when the two agreements were executed and defendant No. 1 executed them as Karta of the family representing defendant No. 2 as well.

13. The question as to whether the two defendants were joint or separate was essentially one of fact, and the Courts below have not committed any error in holding that the two defendants were joint at the relevant time. The nett result of the findings is that defendant No. 1 executed the two agreements as the karta of the joint family consisting of himself and defendant No. 2 but the two agreements being neither for legal necessities nor for the benefit of the estate, they cannot bind defendant No. 2.

14. The agreements executed by defendant No. 1 could bind the interest of defendant No. 2 only if they were for legal necessity or for the benefit of the estate, but the finding being to the contrary, the plaintiff cannot enforce the agreements against defendant No. 2. In this view of the matter the decree passed against defendant No. 2 for the execution of the mukarrari patta must be set aside.

15. The result is that the appeal is allowed, the judgments and decrees of the Courts below decreeing the suit against defendant No. 2 are set aside and the plaintiffs' suit against defendant No. 2 is dismissed, but without costs.

16. The next question arises as to whether the plaintiff can enforce the agreements against the executant, defendant No. 1 Mr. Prem Lal for the plaintiff-respondent has submitted that even if the agreements were not enforceable against defendant No. 2 as they were not for legal necessity and for the benefit of the estate, they were enforceable against defendant No. 1, the executant, and the plaintiff was entitled to a decree against that defendant for the execution of the mukarrari patta.

17. He urged that there was no appeal by defendant No. 1, and the decree passed against him should not be interfered with. He has relied on the provisions of Section 15 of the Specific Relief Act and has stated, on behalf of the plaintiff, that she agreed to relinquish all claim to further performance and the right to compensation for the loss or damage sustained by her through the default of the defendants. According to him, the present case came within the purview of S. 15 of that Act end the plaintiff was entitled to a decree for the specific performance of the agreements against defendant No. 1.

18. He referred to the case of Dwijendra Kumar Roy v. Manmohan De, AIR 1957 Cal 209 in support of his proposition. In that case defendants 1 to 4 had entered into a contract to settle certain lands belonging to them with the plaintiff, and in the suit for specific performance it was found that the contract was not binding on the minor defendant No. 2 in respect of his one fourth, share in the lands in suit. The contract could not be enforced as a whole, but the question arose as to whether it could be specifically enforced in part, that is, with regard to the shares of the adult contracting defendants 1, 3 and 4.

19. Relying on various cases including the case of Panchananda Kundu v. Rajani Kanta Pal, AIR 1931 Cal 463 it was held that the plaintiff-respondent was entitled to a decree for specific performance in regard to the three-fourths share of the adult contracting defendants 1, 3 and 4 without; any abatement in the stipulated salami and rent in respect of the sixteen annas share. The plaintiff in that case had waived or relinquished ill his claim in respect of the remaining one-fourth share as required by the proviso to Section 15 of the Specific Relief Act. It appears from the case of AIR 1931 Cal 463, which was relied upon in the aforesaid decision, that the plaintiff had sought to enforce the contract against defendant No. 1 only in respect of his one-third share of the land in question, and defendant No. 1 and his two minor brothers were members of a joint Hindu family governed by Daya bhaga law. The position under the Dayabhaga law is different. The essence of a coparcenary under the Mitakshara law is unity of ownership, and the ownership of the coparcenary property is in the whole body of coparceners; whereas the essence of coparcenary under the Dayabhaga law is unity of possession.

20. The ownership of the coparcenary property under the Dayabhaga law is not in the whole body of coparceners and every coparcener take a definite share in the property and he is the owner of that share. As every coparcener under the Dayabhaga law takes a definite share of the coparcenary property, he can alienate his share by sale or mortgage in the same manner as he can dispose of his separate property. Having regard to these considerations the principles laid down in the case of AIR 1957 Cal. 209, cannot be applied in the case of the parties to this appeal, who are governed by the Mitakshara law prevalent in the State of Bihar.

21. The question, however, as to whether there can be a decree for specific performance when the contract has been entered into in respect of a coparcenary property, not by all the coparceners, but by one member, is not free from difficulty, and there is a divergence of opinion. Mr. Prem Lal next referred to the case of Baluswami Aiyar v. Lakshmana Aiyar, ILR 44 Mad 605 : (AIR 1921 Mad 172) (F.B). It was held that if a managing member of a joint Hindu family agreed to convey a specific item of joint family property for purposes not binding upon the other coparceners, then the contract could not be performed in its entirety, but the case fell within the provisions of Section 15 of the Specific Relief Act, and the Courts could grant specific performance by a conveyance of the share which the vendor had in the property at the date of the contract if the purchaser elected to pay the entire consideration.

22. The position, however, in the State of Madras with regard to the powers of a coparcener regarding alienation is different as will appear from the following observations in that case at page 623 (of ILR Mad): (at p. 179 of AIR.)

“So far as this Presidency is concerned it has been settled by a series of decisions, commencing from Viraswami Gramini v. Ayyaswami Gramini, (1883) 1 Mad HC 471 that a coparcener can alienate for value not only his share in the entire joint family property but also his share in a specific item.”

“A coparcener of a joint Hindu family governed by Mitakshara obtaining in the State” of Madras “is entitled to alienate his undivided share either in the whole of the property or in a certain specific item of the property or even the whole of a specific item”: Vide Peramanayakam Pillai v. S.T Sivaraman, AIR 1952 Mad 419 (F.B)

23. This being the position the decision of the Madras High Court relied upon by Mr. Prem Lall is of no assistance to him for getting a decree for specific performance of the agreements against defendant no. 1. It was held in the case of Shamlal Yadorao v. Yesaram Lodku, AIR 1954 Nag 334 that if the managing member of a joint Hindu family agreed to convey a specific item of the joint family property for purposes not binding upon the other coparceners the contract could not be performed in its entirety and the suit for specific performance fell within the purview of Section 15 of the Specific Relief Act. I would refer in this connection to the case of Hati Pratihari v. Alekh Mohapatra, AIR 19541 Orissa 130, where a similar question was considered.

24. It was urged in that appeal that according to the provisions of Sec. 15, Specific Relief Act, the contract could be enforced against defendant no. 1, and dealing with that contention their Lordships observed as follows:

“The present case might have come within the language of Sec. 15, and there would be some force in the contention of Mr. Mahapatra but for the position that there the contract is being enforced against a member of a joint family. It is very well known that the undivided interest of a coparcener of a joint Mitakshara family under the school to which we belong cannot be the subject-matter of alienation be it for consideration or gratuitous. In view of this settled position, the plaintiffs in the present suit cannot obtain a decree for specific performance of contract to sell undivided interest of a coparcener, i.e, the interest of defendant no. 1.”

25. With respect, I am in agreement with the views expressed in this case, and the position in the State of Bihar is similar, the defendants being governed by the law of Mitakshara, I would quote the following passage from the Principles of Hindu Law by D.F Mulla, 12th Edition, at page 407:

“Where a member of a joint family governed by the Mitakshara Law as administered in Bengal and Uttar Pradesh sells or mortgages the joint family property or any portion thereof without the consent of his coparceners, the alienation is liable to be set aside wholly unless it was for legal necessity, or for payment by a father of an antecedent debt, and: it does not pass the share even of the alienating coparcener. The result is that if the alienation is neither for legal necessity nor for the payment of an antecedent debt, the other coparceners are entitled to a declaration that the alienation is void in its entirety.”

26. It was held in the case of Manna Lal v. Kara Singh, 1 Pat LT 6 : (AIR 1919 PC 108 (2)) that if the mortgagee failed to prove justifying necessity no decree could be passed even against the share of the Karta (the executant) as the transaction was void altogether. In these circumstances, I am of the opinion that the agreements in question, not being for legal necessity, cannot be enforced even as against defendant no. 1, and the plaintiff is not entitled to any relief against him as well.

27. The share of defendant no. 1 not having been defined, no decree could be passed against him for the execution of the mukarrari patta. The defendants being joint and governed by the law of Mitakshara, the contract cannot be enforced against defendant no. 1, and the plaintiff cannot get any relief under Section 15 of the Specific Relief Act. It is true that there is no appeal by defendant No. 1, but the terms of Order 41 Rule 33 of the CPC, are very wide,

“and in a proper case it gives the appellate Court ample discretion to pass any decree or make any order to prevent the ends of justice from being defeated.”

28. Ganesh v. Baikunthesh*, AIR 1951 Pat 291. Defendant No. 1 has been made a party to this appeal as respondent no. 2, and the decree passed against him can be set aside although he has not preferred an appeal.

29. As a result of all these considerations I hold that the plaintiff is not entitled to specific performance of the agreement even against defendant no. 1, and the decree passed against that defendant also is set aside.

30. There was an application on behalf of the appellant under Order 41 Rule 27 of the Code of Civil Procedure for taking certain documents in evidence, but in view of his success in the appeal it has not been pressed, and it is accordingly dismissed.

31. After the close of the arguments, the learned Advocates for the plaintiff and defendant No. 2 prayed for some time to enable them to come to terms, if possible, and time was granted. The appeal was again put up on the List on the 26th October, 1960, and on that day an application under sec. 151 of the Code of Civil Procedure was filed on behalf of the plaintiff respondent.

32. The plaintiff in that petition has stated the terms on which she was negotiating for the settlement of the dispute, and the prayer was that the appeal should be disposed of. The petition is in fact infructuous and not maintainable, and the appeal has to be decided even without that petition as there has been no compromise. The petition is accordingly dismissed.

33. The nett result is that the appear is allowed, the judgments and decrees of the Courts below are set aside, and the plaintiff's suit against both the defendants is dismissed. Parties will bear their own costs throughout. The plaintiff is entitled to withdraw the balance of the amount of nazarana if deposited.

EE/M.F

34. Appeal allowed.