Ramprasad Ramchandra Rathod vs Manik Radhakisan Misal And Ors. on 27 February, 1987

JUDGMENT

Sharad Manohar, J.

1. Apart from the various factual questions involved in this Appeal, an interesting question under the Hindu Law as to the power of a Hindu father to enter into an Agreement of Sale of immovable property belonging to his sons for the payment of antecedent debt and/or legal necessity and as to the power of the Court to grant specific performance of such agreement arises in this appeal.

2. The appeal arises out of the suit for specific performance filed by the present appellant (who will be referred to hereinafter as the plaintiff) against the respondents (original defendants). The suit has been dismissed by the trial Court by taking a somewhat peculiar view as regards the relevant principles of the Hindu Law and hence this appeal.

I am stating the facts of the case, in some details, at this stage it selfs. Most of them are admitted facts. Whenever there is any dispute about a particular fact, I will indicate the nature of the dispute in the course of the statement. All the parties will be referred to with reference to their position in the trial Court, that is to say as plaintiff or defendant etc.

(a) House Municipal No. 6821 (C.T.S. No. 185) admeasures 54.3 sq. meters. It is situate at Chitale Road, Ahmednagar, it is a two storeyed house and it was the ancestral property in the hands of defendant No. 1 who is, even till this date, the Karta of the joint family consisting of himself and his two sons, defendants 2 and 3. Defendants No. 4 and 5 are his daughters. He had a third daughter who was defendant No. 6 in the suit; but she died during the pendency of this appeal, leaving behind her heirs who are already there on record. Defendant’s wife is very much alive and normally she should have been recognised as the member of the joint family and should have been impleaded in the suit as a party defendant. But the plaintiff has not impleaded her. It need to be mentioned here that all the five children of the first defendant, defendants 2 to 6, were minors not only at the time of the suit transaction but even on the date of the suit.

(b) The father of defendant No. 1 died in 1949 leaving behind three minor sons and his window and fairly extensive immovable property consisting of agricultural lands (some of which were bagayat lands) and houses. Defendant No. 1 was the eldest of the three brothers. It appears that during defendant No. 1’s minority the property was in the custody of the Court of wards. It was released in the year 1955 when he attained majority but the three brothers, it is common ground, continued to remain members of the joint family till 1968. The three brothers separated in the year 1967-68 and in the partition two houses viz. the suit house and another house C.T.S. No. 773 in the area called Telikhunt as also 33 acres if agricultural land at Samvatsar, Tal. Kopargaon came to the share of the branch of defendant No. 1. The other house at Telikhunt has some bearing upon the question arising in this appeal. It will be referred to hereafter as the Telikhunt house. At the time of the partition both the houses were in possession of tenants. In the suit house, which consists of two storeys there were two tenants. The plaintiff’s family was in possession of the ground floor the lease of which was in the name of the plaintiff’s mother. The trial Court has stated that she was the tenant even at the time when the Court of Wards was having the custody of the said entire property and the correctness of this statement was not in dispute before me at all. This position is of quite some significance in that the plaintiff is not a stranger to the house; he has been residing in the same for a long period of years together before he entered into the agreement dated 19-2-1977 with defendant No. 1 to purchase the suit house.

(c) The first floor of the suit house was in possession of another tenant, one Suklal Chandanmal Badera. The Telikhunt house, too, was in possession of various tenants. The resultant position, therefore, was that in the partition, no house with vacant possession of any portion of it came to the share of defendant No. 1’s branch. It was common ground at least before me that even after the partition, defendant No. 1, his wife and children continue to reside in the old residential house which partition, had gone to the share of another brother in the presumably by virtue of some understanding between the brothers. However, almost simultaneously with the partition, or immediately thereafter, defendant No. 1 filed Suit No. 424 of 1968 against the tenant of the first floor of the suit house on the ground that he required it bona fide for the residence of his family. The suit was dismissed by the Court trial but defendant No. 1 filed Appeal No. 275 of 1970, against the decree which appeal was pending in the District Court at the time of the suit agreement.

(d) Defendant No. 1’s branch also got 33 acres of agricultural land in the partition. 11 acres of that land had been leased to the State Farming Corporation from which he got at the relevant time, Rs. 650/- per annum as rent if the evidence of defendant No. 1 is to be believed. He claims to be receiving Rs. 500/- as rent from the other various tenants to whom had been leased another area of 11 acres. The remaining 11 acres of land was in his actual possession and cultivation out of which 3 or 4 acres of land (the defendant’s own evidence, on this point whether it is 3 acres or 4 acres, is inconsistent ) sugar-cane growing land from which, according to him, he harvested 150 tons of sugar-cane which he claims, he supplied to three sugar factories, viz. Sanjiwani, Kolpewadi and Kanhagaon (Godavari). According to him he got net income of about Rs. 6000/- to Rs. 7000/- p.a. But the point which needs to be noted at this stage itself is that independent and documentary evidence was readily available to prove this claim about his annual income from the lands but he has, with noticeable stoutness, just refused to lead any such evidence. This position might be of no legal consequence if his financial condition was of no relevance with reference to the time of the suit transaction which is dated 19-2-1971. He deposes that his income from agricultural lands was Rs. 6 to 7 thousand per annum, that his income from the two houses was about Rs. 80/- per month (about Rs. 960/- p.a.) and that his expenditure for the family was only Rs. 250/- per month (Rs 3000/- p.a.). The thrust of his case and evidence, thus, is that he and his family could live within their income very happily and hence, (this is the thrust) there could be no question of the first defendant or his family being in debts and hence, consequently no legal necessity could conceivably exist for defendant No. 1 to sell the suit house or to enter into any agreement for sale of the same.

But, as will be presently pointed out there exists ponderous and formidable documentary evidence on record that defendant No. 1 and his family were in debts right to the gills at the time of the suit transaction. This neck-deep indebtness was an objective fact. The evidence of both defendant No. 1 as also his wife who was examined as the witness for defendants 2 to 6 leaves no doubt about this position. The argument of the defendants’ Counsel, which has been accepted by the lower Court hook, line and sinker, is that may be that there were those huge debts, but, contend they, the plaintiff did not know this fact and could not have known it because really speaking he had just not made the enquiries requisite in that behalf. Argument in the lower Court was and even of Mr. Rane is that the objective existence of all those debts is of no relevance; if the plaintiff did not have the precise knowledge of the debts, a fact showing that he had failed to make the requisite enquiry, the transaction for purchase of the property in question could not be justified by him, even if the existence of the legal necessity was objectively proved. I shall have to examine the legal correctness of this approach.

What is stated above is the genesis of the agreement of sale executed by defendant No. 1 in favour of the plaintiff which the plaintiff wants to be specifically enforced. Defendant No. 1 wants to go back upon it and the trial Court could not be persuaded by him to give the relief asked for by him.

(e) As mentioned above, in the partition that took place between defendant No. 1 and his brothers in the year 1968 the suit house and the house in Telikhunt come to the share of the branch of the defendants. The ground floor of the house is in the possession of the plaintiff. The tenancy stands in the name of his mother. It is a fact now admitted by defendant No. 1 in his evidence that plaintiff himself also is not a very affluent person as such. He does the business of selling eatables like Chivda. It is also admitted by defendant No. 1 now, in his evidence, that the plaintiff does not carry on any money-landing business at all. His mother and himself are the tenants in respect of the ground floor of the suit house atleast from the time when the house was in possession of the first defendant, i.e. to say, even before 1955.

The first floor of the suit house was in possession of the other tenant Badera against whom suit for possession was filed by the first defendant in respect of which, as mentioned above, appeal was pending in the District Court.

On 19-2-1971 an agreement was entered into between the plaintiff and defendant No. 1 by which defendant No. 1 acting for himself and in his capacity as the of Karta of the joint family consisting of the other members of his family agreed to sell the suit house to the plaintiff for a sum of Rs. 22000/-. On that very day, a sum of Rs. 7000/- was paid by the plaintiff to defendant No. 1 as earnest money and the balance of the amount was to be paid at the time of the execution of the Sale Deed which was to take place within six months from the date of agreement. An endorsement to that effect was made upon the agreement for sale which is produced at Exhibit 68 in these proceedings.

On 12-8-1978 a further sum of Rs. 3000/- was taken by the first defendant from the plaintiff and the time for execution of Sale Deed was got extended by him up to 20-2-1972. On 23-9-1971 defendant No. 1 took a further amount of Rs. 1500/- from the plaintiff by cheque, and agreed that the possession of the plaintiff in respect of the ground floor of the suit house was to be regarded as possession in part performance of the agreement, Exhibit 68. An endorsement to that effect was made by defendant No. 1 on the agreement, Exhibit 68.

On this very date, 23-9-1971, the appeal filed by defendant No. 1 against the decree of the dismissal of a suit reached hearing, was argued and was decided in favour of the first defendant. Exhibit 73 is the appellate decree in that case which shows that the Court had directed the tenant, Badera to hand over possession of the first floor of the suit house, to defendant No. 1 for his bona fide personal requirement.

On 10-12-1971 defendant No. 1 executed Sale Deed, Exhibit 100 in respect of the Telikhunt house for a sum of Rs. 500/-. The Sale Deed, Exhibit 100 is counter-signed even by his wife Kusum. What is significant is that it is nobody’s contention that the said Sale Deed, Exhibit 100 was without legal necessity. Defendant No. 1’s wife and children had stood by that Sale Deed which fact means that the family was in dire need of monies at the time when the Sale Deed was executed. But their contention is that so far as the suit house is concerned, they had no worries about any debts or necessities and that, hence, the agreement of sale, Exhibit 68 was not supported by any legal necessity. I am required to examine the truth and legality of this contention.

(f) As mentioned above, the defendant No. 1 was to execute the Sale Deed, in pursuance of the agreement, Exhibit 68, on or before 20-2-1972. As the date was approaching, the plaintiff gave notice, Exhibit 69, to defendant No. 1 calling upon him to take the balance of the price of the Sale Deed and to execute the Sale Deed on or before the due date. To this notice a reply was given by defendant No. 1 on 18-2-1972 and it was on this date, for the first time, that the defendant took a somersault and denied totally his liability to execute the Sale Deed in pursuance of the Agreement, Exhibit 68.

In this view of the matter the plaintiff had no other alternative but to file the instant suit for specific performance. He filed it on 18-8-1972.

As will be presently discussed, the plaintiff’s claim is quite an honest and genuine a claim. In the suit, he rightly impleaded the executant of the agreement, defendant No. 1, who was the Karta of the family and who continues to be the Karta of the family even till this date (the fact which has got an important bearing upon the question involved in this litigation). He also rightly impleaded his two minor sons, Sanjay and Raju, as defendant Nos. 2 and 3, because evidently they are the coparceners having interest in the suit house by birth. But he also impleaded his three minor daughters, Sunanda, Surekha and Sangita, as defendant Nos. 4 to 6 respectively, who could have no interest in the suit house during the life time of defendant No. 1, whereas strangely enough, he was advised not to implead Kusum, the wife of defendant No. 1, who can perhaps claim interest in the suit house in certain circumstances. Fortunately for the plaintiff it is said Kusum, who had herself defended the suit on behalf of her children, defendant Nos. 2 to 6 and, probably, also on behalf of her husband, defendant No. 1 (because, as will be presently pointed out, the collusion between her husband and herself has not failed to surface itself either in the trial Court or in this Court) quite actively and arduously and she has examined herself as a witness with a view to set at naught the agreement in question. I, however, make it clear that I do not wish to express any opinion in this judgment as regards the legal effect of the fact that Kusumbai, wife of defendant No. 1, is in the strict sense of the term, not a party to the instant suit.

3. The written Statement of defendant No. 1 distinguishes itself more by its dishonesty embellished, at a place, by artistry emanating from cunning legal advice, than by anything resembling genuine or reasonably tenable defence.

I will not refer to the flippant and frivolous defences in such cases such as the error in the distinction of property etc. Our forensic community revels in such defences knowing full well that the only outcome of such defences is the wastage of Court’s precious time and delay of proceedings. Not infrequently, this is what is intended : In the instant case, these defences must be having no other intendment at all, because they were not pressed into service very seriously in the lower Court and in this Court they are specifically given up by Mr. Rane, appearing for respondent Nos. 2 to 6.

I will refer only to those defences raised by defendant No. 1 as genuinely necessitate consideration. But not even all those defences are pressed into service by Mr. Rane in this appeal. I will however, refer to them and shall also briefly point out wherever possible the false or worthless character of the same. These defences are the following :—

(i) Defendant No. 1 and defendant Nos. 2 to 6 do not form a joint Hindu family, that defendant No. 1 is not the Manager of the family and that defendant Nos. 2 to 6 are living separately from him and they not being maintained by him.

I may be stated at this stage itself that the contention is patently false, which falsehood is revealed not only by the evidence on record but even by the Written Statements of defendant Nos. 2 to 6 as also by the submissions made and arguments advanced by Mr. Rane in this Court as also by the positive and unequivocal statement made by him across the bar to the effect that the 1st defendant, his wife and all the remaining defendants formed a joint family at the time of the suit transaction and that all of them continue to remain as a joint family till this date and, more importantly, that defendant No. 1 continues to be the Karta of the joint family, to use the current journalese, till going to press. But that apart, point is that the falsehood of the case of defendant No. 1 is very much betrayed by this kind of defence.

(ii) The 2nd plea of the defendant was that he was not the guardian of defendant Nos. 2 to 6 and that his interest was conflicting with theirs.

This plea may have some bearing upon the question whether defendant No. 1 could have entered into the suit agreement with the plaintiff for sale of the interests of the suit house even of the defendant Nos. 2 to 6. But beyond that aspect of the matter, the plea has no relevance. That apart, it may be stated here that Kusumbai, wife of defendant No. 1, was appointed by the lower Court as the guardian of the minor defendant.

(iii) The 3rd plea of this defendant was of total-denial of the suit transaction, viz. the Agreement of Sale.

Another falsehood betrayed. The evidence of defendant No. 1 leaves no room for doubt that an Agreement of sale was assigned by him. As a matter of fact, even the subsequent portion of the written statement reveals an implied admission of the signing of the agreement. Some sort of explanation is sought to be given for the signing. But the fact that a document purporting to an agreement of sale was signed by him was not denied by this defendant anywhere in his evidence and still para 6 of his written statement states that the agreement is not admitted.

(iv) The 4th plea was that the plaintiff was a money-lender, that defendant No. 1 was badly in need of monies, which the plaintiff was prepared to lend him, and that the plaintiff got executed from defendant No. 1 the Agreement of Sale by way of security assuring that the document would be torn into pieces as soon as the monies were repaid. The further plea was that the document was a nominal one and not intended to be acted upon that the document was not an Agreement of Sale and the monies paid under the same were not received as earnest monies.

Another blatantly false plea and in connection with this falsehood the defendant has not even made any bones. He has admitted in his evidence in so many words that the plaintiff does not do any money lending business, Further he has stated that he has taken hand-loan from the plaintiff even previously, but that no document used to be taken by the plaintiff in that behalf.

The plea that this was a transaction of loan, pure and simple, and that it was never intended to be acted upon has in fact no basis in the evidence at all. Even the trial Court has recorded an unequivocal finding in favour of the plaintiff in that behalf. But it is unnecessary for me to dwell upon this defence, because Mr. Rane made categorical statement before me that it would not be possible for him to justify this plea although he stated that he was appearing for defendant Nos. 2 to 6 and not for defendant No. 1. He advanced some half-headed arguments as regards the plea that the document was not intended to be acted upon. But he candidly stated that so far as the plea of this being a loan transaction he will not be able to justify or support the same.

Any very rightly so. If this was loan transaction, there would be some provision for payment of interest. This was sought to be done by averment that interest of Rs. 2000/- was deducted at the very beginning. But there is next to no evidence about this.

(v) Then it is contended that on the date of the agreement the suit house was for about Rs. 50,000/- to Rs. 60,000/-.

Not an iota of evidence apart from the bare and interested word of defendant No. 1 is led in this behalf. Even defendant Nos. 2 to 6 have not led any evidence to prove that consideration of Rs. 20,000/- was inadequate.

Moreover, even this point has been specifically given up by Mr. Rane in this Court.

(vi) In para 9 of the Written Statement, it is contended that on the date of the agreement not Rs. 7000/- but Rs. 5000/- was the amount paid by the plaintiff to defendant No. 1. Contention was that the balance of Rs. 2000/- was the advance interest cut at the inception of the loan transaction; the rate of interest being 3% per month.

It is further alleged that on 12-2-71 only a sum of Rs. 1800/- was received by the defendant and not Rs. 3800/- as endorsed on the document. Although the total amount was received by defendant No. 1 payment of Rs. 3200/- was not admitted.

Yet another statement of falsehood. The trial Court has found this to be a falsehood. Mr. Rane conceded that this was nothing but falsehood on the part of defendant No. 1.

(vii) Nextly, in para 10 of the Written Statement, it is stated that there was no breach of the agreement on the part of the defendant and that in fact the plaintiff did not keep his word of reconveyance after payment and had filed a falsehood.

There is no dispute that none of the defendants have paid a farthing to the plaintiff by way of repayment of amount received by defendant No. 1 from the plaintiff, assuming that the same was a loan.

(viii) Nextly, it is contended in para 15 of the Written Statement that the defendant required loan of Rs. 1500/- in connection with the eviction suit filed by him against his 1st floor tenant Chandanmal, that there was no need to sell the house, that after the eviction of the said tenant, the defendant was in occupation of those premises, that defendant No. 1 had no residential house except the suit house and that more loss and hardship would be caused to the plaintiff by passing a decree for possession against him.

This is one of the arguments which is pressed into service by Mr. Rane in the course of his argument with which I will presently deal.

(ix) Defendant No. 1 was mentally weak at the time of the suit transaction and by taking undue advantage of that position, the plaintiff got the suit document executed from defendant No. 1.

No evidence is led as regards this plea. The evidence sought to be led is that defendant No. 1 was given to drinking. No evidence about defendant being mentally week is led at all. The plea is not accepted by the trial Court. But Mr. Rane tried to support that plea; not the plea of mental weakness but the plea of the craze for the glass that cheers. I will deal with that argument presently.

4. This brings me to the Written Statement of defendant Nos. 2 to 6. They are impleaded because the property was a joint family property in the hands of defendant No. 1.

(a) In Para 4 of the Written Statement, it is candidly stated that defendant Nos. 1 to 6 and their mother did form a joint family. It is also stated further that defendant No. 1 was the Karta of the family. In fact the statement is to the effect that he was the Karta at the time of the filing of the Written Statement. As mentioned above, it is conceded before me by Mr. Rane that he continues to be the Karta even on the date of the argument of the appeal.

I will presently point out that there is complete collusion between defendant No. 1 and his wife who acted as guardian of defendant Nos. 2 to 6. And still she has set up the above contention which completely falsifies the contrary contention of defendant No. 1.

(b) Para 5 of the Written Statement states that the mother of defendant Nos. 2 to 6 had interest in the suit house and since she has not been impleaded the suit is bad for non-joinder of necessary parties.

An Issue, Issue No. 7, has been framed by the lower Court as regards this plea. But the finding recorded on the same in Para 20 of its judgment is in the negative. The reasoning of the learned Judge appears to be quite right. As held by a Full Bench of this Court in the famous Parappa’a case in 58 Bombay Law Reporter, Page 404. Though a wife does not get a share in the coparcenery property immediately after entry in the joint family upon her marriage, she is entitled to a share at the time when partition takes place between her husband and his sons. The trial Court has rightly held that no such plea of partition has been raised by defendant Nos. 2 to 6. In fact, as stated above, the consistent and persistent plea is that defendant No. 1 on the one hand and the remaining defendants on the other continue to be the members of toe same family and that defendant No. 1 continues to be the Karta of the same. If this is the position, the view taken by the trial Court appears to be correct. Any way in this appeal that contention covered by issue No. 7 was not pressed into service by Mr. Rane.

(c) In para 6 of the Written Statement it is denied that the agreement was for the legal necessity of the family. In para 7 it is denied that the transaction resulted into any benefit to the family. Contention is that defendant No. 1 had so many ancestral houses and landed property at Ahmednagar and outside and that the agriculture yielded huge income from sugarcane and other bagayat crops. Contention is that there was no legal necessity to sell the house, not did the sale result in any benefit to the estate.

I shall examine the impact of this plea on Mr. Rane’s argument that the decree for specific performance is passed, defendants will be thrown on the streets.

(d) Para 8 of the Written Statement repeats nothing but the averment made by defendant No. 1 in his own Written Statement as regards the non-receipt of Rs. 3200/- out of the payment of Rs. 11,500/- alleged by the plaintiff. But the written statement of this defendant goes further and states that even the payment of Rs. 1500/- received by defendant No. 1 by a cheque was not received by him, because he did not encash the cheque.

No such plea is raise by defendant No. 1 himself. Not a word is stated by the wife of defendant No. 1 in her evidence on behalf of defendants Nos. 2 to 6. There was not even any pretence of submission on the basis of this plea, in this Court. It is thus clear that the wife of defendant No. 1 (mother of defendant Nos. 2 to 6) does not wish to lag behind her husband in the matter of stating blatant falsehood in her pleadings.

(e) In para 10 of the Written Statement, averments are made to show that there were no loans incurred by defendant No. 1 needing immediate repayment. The other legal necessities referred to by the plaintiff in his plaint were denied. Likewise, the fact that the plaintiff had made enquiries about the legal necessity before entering into the transaction were denied.

Mr. Rane has pressed into service this point by stating that the debts were not “due and payable” on the date of agreement.

(f) In para 12 of the Written Statement, it is alleged that defendant No. 1 was addicted to vices like drinking liquor and that the suit transaction was entered into by defendant No. 1 on that account. Contention, therefore, was that the transaction was not binding upon defendant Nos. 2 to 6.

Defendant No. 1 himself did not set up this plea in his Written Statement.

(g) In Para 13 of the Written Statement reference was made to the notice published by the mother of defendant Nos. 2 to 6 on their behalf in the local Daily called “Nagar Times” on 21-7-1968 warning people not to enter into any transaction with defendant No. 1 with respect to the suit house and other properties of the joint family. Contention was that the plaintiff was fully aware of this position and still entered into this suit transaction. According to the defendant, this fact ought to non-suit the plaintiff.

I may state here that this contention was not pressed into service by Mr. Rane at all, probably because no evidence is led by the defendant that the plaintiff was ever aware of any such public notice as is referred to in said para 13 of the Written Statement.

(h) In para 14 of the Written Statement, plea was urged that the defendants are in occupation of the 1st floor of the house and that they have no other premises for the residence and, further, that they would have to face grave hardship if a decree for possession was passed against them.

As stated above, this is one of the main contentions urged by Mr. Rane in this Court, with which I will deal presently.

The other averments made in the Written Statement are more or less meaningless and no reference to the same is necessary.

5. On these pleadings, issues were framed by the learned Judge and the parties went to trial.

On all the Issues, except those which will be referred to by me presently, the learned Judge has recorded an unequivocal finding against the defendant. He has negatived the defendant’s contention that the suit agreement was no to be acted upon or that the suit agreement was only a security for the loan taken by defendant No. 1. The plea that the amount of Rs. 11,500/- was not received by the 1st defendant towards the consideration is rejected by him and he has held that the plaintiff has paid Rs. 11,500/- towards the purchase price of the suit house. The plea that defendant No. 1 was mentally affected and that the plaintiff has taken undue advantage of that possession is also negatived by him. He also held that defendant No. 1 and his sons were joint and that defendant No. 1 had the power to enter into agreement for sale of the suit house including their share in the suit house. He has also held that defendant No. 1 was not a necessary party to the suit.

However, after holding on so many points in favour of the plaintiff, the learned Judge has held that the plaintiff had not proved the legal necessity for defendant No. 1 to enter into agreement for sale of the suit house and that, hence, the agreement was not binding upon defendant Nos. 2 to 6. He has also held that the specific performance of the agreement cannot be decreed. But the basis for this finding is that the element would be binding only upon defendant No. 1 and that, if sale was to ordered, partition of the 1/5th share of defendant No. 1 will have to be effected. He has held that the specific performance of the agreement only in respect of 1/5th share would not be advisable.

The learned Judge has, however, held that the plaintiff is entitled to refund of Rs. 11,000/- paid by him to defendant No. 1 with interest at 6% from the date of the notice given by the plaintiff on 16th February, 1972 till the date of payment. The plaintiff’s suit is decreed with costs to this extent only and the rest of the plaintiffs said is dismissed.

6. Before I deal with the arguments advanced by Mr. Paranjape, appearing for the appellant, and Mr. Rane, appearing for respondent Nos. 2 to 6. I may briefly mention the reasoning upon which the finding of the learned Judge on Issue Nos. 6 and 8 is based. These are the only issues, finding on which is recorded by the learned Judge against the plaintiff. I may, therefore, set out the issues, as framed by the learned Judge, verbatim :—

“(6)(a) Whether the plaintiff prove that there was legal necessity for the defendant No. 1 to enter into an agreement to sell on 19th February, 1971 ?

(b) Whether the agreement is binding on defendants Nos. 2 to 6 ?

(7) ……………

(8) Whether specific performance of contract be ordered ?”

7. The reason for the adverse finding recorded by the learned Judge on these issues is somewhat peculiar. According to the plaintiff, defendant No. 1 was heavily indebted at the time of the suit transaction. He has referred to the other family necessities as well. But his main contention is that the defendant had no other alternative but to sell the suit house in view of his huge indebtedness. In this connection, the learned Judge has recorded his specific finding by stating that :—

“So far as the expenses of the bank loan and tax dues are concerned, in fact these two loans did exist at the time of the agreement to sell.”

But the learned Judge has further held that the plaintiff had failed to prove that he had made bona fide enquiries about the existence of debt and that actually he had made no such enquiries.

But in Para 13 of his judgment, he has rightly stated further that even though the plaintiff had not made any enquiry, if the existence of the legal necessity was itself proved, the agreement would be saved enquiries or no enquiries.

The learned Judge has further referred to the plaintiff’s case that defendant No. 1 wanted to sell the suit house for payment of antecedent debts, viz. the Bank dues and the Municipal dues. So far as the municipal dues are concerned, the learned Judge has held that the municipal taxes amounted only to Rs. 593/- and not Rs. 700/- as alleged by the plaintiff. So far as the Bank dues are concerned, the learned Judge has referred to the various bank loans. The 1st loan is dated 3rd November, 1989 for Rs. 12,500/- for which defendant No. 1 had executed a simple mortgage as also a pro-note, payable on demand, in favour of the Bank of Baroda, at Kopargaon. The second bank loan is the crop loan of the Rs. 6000/- taken from the same bank on 7th February, 1970 as against a demand pro-note for Rs. 6000/-. The 3rd loan is also a crop loan for Rs. 8000/- which was taken by defendant No. 1 as against a demand pro-note dated 17th September, 1970 for Rs. 8000/-. The learned Judge has not held that these loans were not taken by defendant No. 1. Thus, even as per the learned Judge’s finding, loans to the extent of Rs. 26,500/- were taken by defendant No. 1 from the Bank of Baroda. The loan for Rs. 12,500/- was partly secured by Deed of Mortgage for Rs. 10,000/- and partly by a pro-note for the entire amount of Rs. 12,500/-. The remaining loans were admittedly payable on demand only as per the demand promissory note. The learned Judge has, however, held that although these loans were repayable by defendant No. 1 the loan of Rs. 10,000/- convered by simple mortgage was not due and payable till the period of the mortgage was over forgetting that the loan was also secured by a demand pro-note as per which the amount of the loan could be demanded by the Bank and, hence, would be payment at any time. The plaintiff had produced the two letters, Exhibits 78 & 79, written by the Bank of Baroda addressed to defendant No. 1, clamouring for repayment of loan. But the learned Judge has held that the Bank had given loan against hypothecation of crops and that they could be recovered only by the sale of the crops. This was evidently with reference to the two loans of Rs. 6000/- & Rs. 8000/- respectively. The learned Judge has observed that in the normal course the Bank would have recovered the amount from the sale of hypothecated sugarcane crop. According to the learned Judge loans are given at the beginning of the crops and hence the Bank would have to wait till the crops become ripe for harvesting. He has therefore, held the argument advanced on behalf of the defendant, viz. that he was given time by the Bank to repay the loan, to be correct. According the learned Judge, the loans secured only by pro-notes would be payable on 30th June, 1971. Hence, according to him, the Agreement to sell the house entered into by defendant No. 1 on 19-2-1971 was not backed up by legal necessities. The reasoning is somewhat jumbled or confused reasoning ; but the substance of it is that according to the learned Judge, the loans were payable earliest on 30-6-1971 and that, hence, on the date of the agreement, 19-2-1971, none of the three loans were due and payable. In other words, according to the learned Judge, unless the property of the defendants was liable to be sold instantaneously for repayment of the loans, the legal necessity contemplated by Hindu Law, justifying the Karta to sell the interest of the other coparceners, did not exist.

The learned Judge has referred to the plea of existence of antecedent debt incurred by defendant No. 1, but has not dealt with the same in his judgment although it was purely a legal plea.

8. Let me now deal with he arguments advanced across the bar by both the learned Counsel.

(A) Mr. Paranjape for the appellant/plaintiff urged 5 points before me :—

(a) It was an error on the part of the learned Judge to hold that before entering into the transaction, the plaintiff had not made the requisite bona fide enquiries about the existence of the legal necessities justifying that sale of the suit house;

(b) Even assuming that there was some flow or defect in the enquiries made by the plaintiff, the existence of legal necessity was a proven fact even as per the finding of the lower Court and once that fact is proved, the question whether the intending purchaser made the enquiry or not became academic;

(c) The learned Judge’s view that unless the joint family property was under the threat of instant sale or instant auction, the existence of legal necessity for sale of the joint family property for payment of the debts admittedly owed by the Kartas of the joint family cannot be regarded as “legal necessity” is wholly untenable in law;

(d) But even factually the learned Judge was wrong in holding that the property was not under a threat of sale by the Bank. The two Notices, Exhibits 78 & 79, show that the last date for the payment of loan was 30th June, 1971 and that the Bank had been pressing for the repayment of the same. According to the learned Counsel, even assuming that the loan was payable not before 30th June, 1971, still the act of defendant No. 1 of entering into an Agreement of Sale on 19th February, 1971 for payment of the loan which was payable on or before 30th June, 1971 must be stated to be an act justified by legal necessity. According to the learned Counsel, the view of the learned Judge appears to be that defendant No. 1 had to wait until 30th June and could not enter into the agreement for the sale of the house for repayment of the loan. According to the learned Counsel it is meaningless on the face of it. The suit house had to be sold by private agreement with a view to avert the imminent predicament and that was as much a legal necessity as anything else, contends the Counsel;

(e) In any event, the sale was made by the father of the interest of his sons in the joint family property. In the instant case, there was admitted or proved existence of antecedent debts, viz. the bank dues and municipal taxes. The bank dues amounted to about Rs. 26,500/-. Defendant No. 1 had every power to enter into an Agreement of Sale of the house for payment of the antecenent debts.

(B) Mr. Rane, on the other hand, tried to repell these arguments by contending :—

(a) that there was no such imminent debt payable by defendant No. 1 as justified that allenation of the suit house which was the only residential house in occupation of the joint family;

(b) that the enquiry of the legal necessity pleaded and sought to be proved by the plaintiff was an eye-wash and in the absence of such enquiry the specific performance of Agreement of Sale could not be directed, because even the completed sale without such bona fide enquiry would not be justified by legal necessity. In other words, according to the Counsel, enquiries on the part of the intending purchaser were indispensable, the actual existence of the legal debts notwithstanding;

(c) The suit house was the only house in which the joint family could reside. If the suit house was sold, not only defendant No. 1 but even his wife and minor children would be thrown on the street and the Karta had no power to enter into such Agreement of Sale to bring about such position. According to the learned Counsel, in such circumstances the sale of agricultural lands could be understood and justified, but the sale of residential house would be illegal;

(d) In the context of the above position, viz. that by the sale of the house the wife & minor children of defendant No. 1 would be thrown on the street, the Court would not and should not decree specific performance of the Agreement of Sale;

(e) That the existence of legal necessity had relevance only vis-a-vis the actual sale or other kind of alienation ; but when there was no completed alienation as such but was in existence only on Agreement of Sale, different considerations arose and the Court would have no jurisdiction to decree specific performance of an Agreement of Sale even on the ground that there was legal necessity for sale of the joint family property; and

(f) The existence of antecedent debt was relevant vis-a-vis the actual sale and not vis-a-vis an Agreement of Sale.

9. I will firstly deal with the last proposition urged by Mr. Paranjape and controverted by Mr. Rane, because the question involved therein is fully covered by a judgment of the Division Bench of this Court, my attention to which was invited by Mr. Paranjape himself in . Jaiprakash Mangilal Agarwal v. Smt. Lilabai w/o Vrijipalji Bhate and another.

In that case, this Court has held that the principle viz. that a father in the Joint Hindu Family is entitled to alienate his sons’ interests in the joint family property on the ground of existence of Antecedent Debts (which are existent in fact and are really antecedent in time) does not apply to Agreement of Sale of joint family property entered into by the father. In effect, this Court has reasoned that thought the principle that a transfer effected by the father of his son’s interest in the joint family property for the payment of his own antecedent debts is a valid transfer is a principle firmly entrenched in Hindu Law, that principle has no application vis-a-vis a mere agreement of Sale of the son’s interest because an Agreement of Sale creates no interest in the property and does not effect any transfer of the property. This Court appears to have held that the power to transfer his son’s interest in the joint family property, wielded by the father, is his personal power which has got to be exercised by the father himself and the ratio of the Division Bench judgment appears to be that the Court as such cannot exercise the power by directing specific performance of the Agreement of Sale entered into by the father for sale of his son’s interest in the ancestral property.

Mr. Paranjape contended that the trial Court has not considered the question of the Court’s jurisdiction to direct specific performance of the Agreement of Sale entered into by defendant No. 1 for payment of his antecedent debts presumably because of the existence of this Division Bench’s judgment. But Mr. Paranjape conceded that as the Division Bench judgment stands the question stands fully covered. But according to him, there exist quite a few chinks in the reasoning of the judgment. He wanted to invite my attention to a few aspects of the principle of pious obligation which, according to him, were not taken into consideration by the Division Bench while holding that the power of the Hindu father to alienated his son’s interest in the joint family property for payment of antecedent debts cannot be exercised by the Court while decreeing specific performance of the Agreement of Sale entered into by the father. For instance, he wanted to invite my attention to the power of the liquidator or the Court Receiver to sell the interests of the insolvent father in a joint Hindu family for payment of antecedent debts. According to him, this power of the liquidator or the Court Receiver was recognised even by the Privy Council and if this is the position according to him, there is no reason why the Court should not exercise the power which could be exercise by the Receiver in insolvency proceedings or by the official liquidator in the winding up proceedings.

I do not propose to examine this argument at all firstly because the judgment in question is a Division Bench judgment which is binding upon me sitting singly as I am and secondly because to my mind, the appeal is capable of being allowed for other good reasons, and further, because so far as this Court is concerned, it is bound by the Division Bench judgment and I do not find it necessary to refer the Appeal to a Division Bench particularly when I have heard the Appeal at length and I find that the Appeal is capable of being allowed on some other grounds.

10. Out of the other questions raised by Mr. Paranjape, I will firstly deal with the question whether legal necessity for the sale of the house is proved or not.

The substance of the lower Court’s view on this point is already set out by me which is to the effect that although there existed huge bank dues on the date of the Agreement of Sale the dues were not “payable”, in the first place, till 30th June, 1971 and, in the second place, some of them were payable only against the mortgage of the agricultural lands and agricultural crops, which , according to the learned Judge, meant that the Bank would be under an obligation to recover the amount only by the sale of crops or at the most by the sale of the lands. According to the learned Judge, even that contingency of the sale of the lands and crops would arise at a later stage, and that, hence no impending urgency existed for sale of the suit house for the purpose of the payment of the bank dues.

Mr. Paranjape very justifiably assailed this view and this approach of the learned Judge. To my mind, the view is patently erroneous. But Mr. Rane made two-fold submissions on this point while justifying the view taken by the trial Court. His first contention in this behalf, at the outset of his argument, was that these bank dues really represent Antecedent Debts for which a Hindu father would be entitled to sell his son’s interests in the ancestral property. According to the learned Counsel, these debts did not assume the character of legal necessity contemplated by Hindu Law and according to the learned Counsel so far as the father’s capacity to sell son’s interest in the joint family property for Antecedent Debts were concerned, the learned Counsel strongly relied upon the Division Bench judgment of this Court, referred to above, .

His second submission in this connection was that there existed no such debt owed by the joint family on the date of the agreement as constituted legal necessity, because those debts were not due and payable on the date of the Agreement of Sale, Exhibit 68.

I have already stated above that so far as the plea of antecedent debts is concerned, I do not propose to examine that question, because the Division Bench judgment in that behalf is binding upon me. But the point here is not of Antecedent Debt. The question is whether those debts constituted legal necessity or not.

11. To my mind, the fallacy in the agreement of the learned Counsel is that if any debts are antecedent debts, they cannot constitute legal necessity. What is lost sight of is that the same debt may fall in both the categories. A father might incur debts for legal necessities. After the passage of time, those very debts become antecedent debts owed by him and he might sell the property for payment of those antecedent debts. This does not mean that the property is not sold for legal necessity. It is not as if that the same debt cannot fall in both the categories simultaneously. Some debts will fall in both the categories. In fact line of demarcation between the two is, quite frequently, very thin. But the point is that in some cases there may be none. It can be said that these two kind of debts conceptually form intersecting circles. Some of the antecedent debts may not be legal necessities. Some legal necessities may not be antecedent debts. But some may be both. There is area in both the circles which is common to both of them. It is this area with which we are concerned in the present appeal. The same debts contracted by defendant No. 1 constituted both legal necessity and antecedent debts.

12. In this connection, it needs to be noted that the purpose for which the bank loan was taken by defendant No. 1 was manifestly the purpose constituting legal necessity. There are in all three such debts totally amounting to Rs. 26,700/-.

The 1st loan is of Rs. 12,700/- which is taken for installing Oil Engine for the well on the sugarcane crops on the joint family lands. The other is dated 7-2-1970 for Rs. 6000/- and the 3rd is dated 17-9-1970 for Rs. 8000/- for the purpose of financing the sugarcane crops taken on the joint family lands. On the face of it, each of the loan is for legal necessity or for the benefit of the estate of the join family. But for the loan, sugarcane crops could not have been taken by defendant No. 1 for the joint family.

If we turn to the Bank’s statement the correctness of which is not disputed, we find that as regards the first loan, it was wholly of Rs. 12,700/- secured by the pro-note and partly, to the extent of Rs. 10,000/- by the mortgage of the land, on 26-12-1970 that is to say just a short time before the date of the Agreement. The bank dues on this Khata were Rs. 13,779.20 (vide Exh. 99) on 26-12-1970, just before the date of the Agreement. As regards the bank loan for Rs. 8000/-, which was secured only by a pro-note and by hypothecation of the crop, the amount due on this Khata on the said date 26-12-70 was Rs. 8196.85 (vide Exh. 98). As regards the loan of Rs. 6000/- secured by pro-note and by hypothecation of crops, the amount due on 26-12-70 was Rs. 6266.90. The statement further shows that no amount was paid towards any of these Khatas before the date of the agreement, which means that dues had increased on the date of the agreement because the interest was running. But even ignoring the interest, the total amount due to the Bank is on date of the agreement was Rs. 28,243.95. The payment of those debts constituted unqualified legal necessity. If the suit house was agreed to be sold for the payment of those dues, it is an impossible contention that the purported alienation was not for legal necessity.

13. But the lower Court has taken the view which, to my mind, is quite strange. Mr. Rane has towed the same view, viz. that these huge debts of the amount of Rs. 28,243.95 had not become due and payable on the date of the agreement. Mr. Paranjape exhaustively analysed the transactions and contended with evident force that there is no basis or justification for this view at all. So far as the loan taken for the oil engine was concerned, it was against the mortgage of some of the agricultural lands. Contention was that the mortgage period had not ended. Unfortunately, the Deed of Mortgage is not produced before the Court. But I am assuming that the period of the mortgage has not come to an end. Fact, however, remains that these loans were secured also by pro-note payable on demand for the entire sum of Rs. 12,700/-. This means that it was open for the Bank to demand the payment at any time and no defence would be available to the debtor at all. The other two loans are also secured by demand pro-notes. It may be that they were also secured by hypothecation of crops. But that was an additional security. It could not be said merely on that account that the debts had not become due and payable on the date of the agreement. Those debts were due and payable on the very first day of the date of the Agreement.

But in addition to these bank statements, we have on record two letters of the Bank addressed to defendant No. 1 which show that so far as the other two loans, secured by hypothecation of crops, were concerned, the date fixed for the re-payment of loan was 30th June, 1971. The 1st letter dated 10-7-1972 (Exh. 78) shows that the Bank had sent several reminders to defendant No. 1 for re-payment of the loan and that he had failed to make the payment. Similar is the position is regards the other loan advanced against hypothecation of crops. The letter dated 2-5-1973 (Exh. 79) shows that the Bank had been clamouring for re-payment of the loan and that defendant No. 1 was quite nonchalant about it. Both these letters show that after clamouring for the repayment, the Bank had threatened legal action against defendant No. 1.

But what is held by the lower Court and now urged by Mr. Rane is that the loans might have become payable on 30th June, 1971, but they had not become payable on 19-2-1971 which is the date of the impugned agreement and I am called upon to hold that in the context of this position, there was no legal necessity to sell the house. To my mind, more innocent view of the matter can hardly be conceived of. It is an admitted position evident from the record that defendant No. 1 had no other means whatsoever to repay the loan. The only way in which the loan could have been recovered by the Bank would be by sale of the agricultural land as also, probably, by the sale of the suit house. This would be the direct effect of the fact that the loans were secured not by hypothecation and mortgage, but were also secured by demand promissory-note. If the suits on demand promissory-notes, to which there would be no defence, were decreed, even the suit house could have been brought to sale in execution of the decree. The disaster was very much impending and was very much evident just round the corner. If, with a view to avert that disaster, the Karta of the joint family decided to sell the suit house, pay off the bank dues and ensure that the agricultural lands, which were the main source of their income, were not lost to the joint family, such an action on the part of the Karta cannot be condemned as an unlawful or uncalled for action. It is too many naive a view that the Karta must wait until some properties are brought to sale by auction and must enter into the agreement for sale of the other properties only when those properties (the agricultural lands in the present case) were brought to sale. Legal necessity in this case lay in the avoidance of the sale of the agricultural lands. It is the contention of defendant Nos. 2 to 6 voiced by their guardian mother that the family was extremely an affluent family with their huge agricultural income. If this was the position, then the income would vanish away if the lands were brought to sale by the Bank.

14. Mr. Rane, however, relied upon the judgment of a learned Single Judge of this Court reported in 33 Bom.L.R., page 104 Pandharinath Govind Vani v. Ramchandra Bandu Vani, in support of his proposition that in the case of a mortgage, the mortgage money does not become due until the expiry of the period of mortgage and that the sale for payment of such bank dues cannot be said to be for legal necessity. In that case, a Hindu widow acting as the guardian of a minor had mortgaged the minor’s property for Rs. 200/-. It appears that she further borrowed a sum of Rs. 300/- on that mortgage. There was no dispute that the monies were borrowed for family necessities. 9 months after the mortgage, the widow sole the property to the defendants for Rs. 330/- and the defendant paid Rs. 330/- to the mortgagee in satisfaction of the claim. In the suit filed by the minor sons for setting aside the alienation, it was held by justice Baker that the Sale Deed was liable to be set aside an the plaintiff paying to the defendants a sum of Rs. 330/-. The Court held that there was no legal necessity for the subsequent transaction of sale even though the earlier transaction of mortgage was supported by legal necessity.

Much water has flown through Jamuna & Krishna after the said decision of the learned Single Judge. We do not have all the facts taken into account by the Court in the said case Pandharinath v. Ramchandra for holding that there was no legal necessity to sell the house for satisfying the mortgage. On the other hand, we have on record here, in the instant case all those serval demands made by the Bank with a threat of legal action. Probably, no such threat existed in the case which was being dealt with by the learned Single Judge in 33, Bom.L.R. 104.

But that apart, I would have found it difficult to agree with the judgment even on the 1st principle which has stood expounded by the passage of time after the year 1930-31 when the decision was given by the learned Single Judge. Any number of decisions could have been cited in this connection. But may task is very much relieved in this behalf by the judgment of the Supreme Court in the case of Smt. Rani and another v. Smt. Santa Bala Debnath and others, . In that case, the Supreme Court was examining the concept of legal necessity. In para 10 of its judgment, the Supreme Court has observed as follows :—

“In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alience by proof of actual necessity or by proof that he made proper and bona fide enquires abut the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.”

As is seen above, in the instant case, there was real pressure and real threat of loos to the family of its precious agricultural property, had not defendant No. 1 raised monies for payment of the bank dues before the agricultural lands were actually brought to sale by the Bank. Anybody can see that if any debtor tries to sell the land urgently at the eleventh hour, he is bound to get lesser price than if he makes the sale or enters into an Agreement of Sale in reasonably good time. A purchaser knowing that the vendor is in urgent need of the monies tends to under-bid and the vendor, who has no choice, is required to sell the land for a throwaway price. In the case such as the present one, therefore, it is an act of prudence that the monies are raised in good time before the need for payment arises. In the instant case, defendant No. 1 had to pay money on or before 30th June, 1971. If he, therefore, started making arrangement for raising that amount or a substantial portion of that amount on 19th February, 1971, that must be considered to be an act of prudence, not an act of whim or caprice.

15. Mr. Rane submitted that the above Supreme Court judgment in Smt. Rani’s case does not set out what the compulsions can be but states only that there must be pressure upon the Karta for sale of the land.

To my mind, from the very nature of things, the concept such as compulsion & pressure cannot be the subject matter of precise definitions. They have to be understood by the Courts in the lights of the facts of each case. But a thing does not become non-existent merely because it is Incapable of precise definition. We can know from the fact of each cases as to whether there was compulsion or pressure which weighed upon the mind of the Karta while effecting the sale or while entering into an agreement of sale or not.

To my mind, the above mentioned judgment of the Supreme Court is a complete answer to Mr. Rane’s contention that the Bank loans were not due & payable on the date of the agreement or that the Agreement of Sale was not supported by legal necessity.

16. Mr. Rane then argued that this was a case where the Agreement of Sale was really not based in legal necessity because no enquiries were made by the plaintiff as regards the existence of the legal necessity. In this connection, he relied upon the appreciation of evidence by the trial Court. The finding recorded by the trial Court in this behalf is that no proper enquiries were made by the plaintiff while entering into the Agreement of Sale as regards the existence of the legal necessity. Mr. Rane took me through three documents as also the oral evidence led on behalf of the plaintiff to justify his contention that no bona fide enquiries had been made by the plaintiff as regards the existence of the legal necessity. I have myself analysed the three documents and the evidence of the plaintiff and by and large I am quite satisfied that the plaintiff had made the necessary enquiry before entering into the transaction.

But what is to be noted at the very outset is that the question of these enquiries is, really speaking, wholly academic, if not futile. At least some principle in every branch of law must be taken as an established and deeply entrenched principle. One such deeply entrenched principle is that a purchaser from a Karta of a Hindu Joint Family, of the property belonging to the joint family must prove :—

(a) that there existed a legal necessity as an objective fact which necessitated sale of the property purchased by him; and

(b) that in any event he made all the necessary enquiries and satisfied himself that there existed such legal necessity compelling the Karta to sell the joint family property, including the interest of the other coparceners.

But the point is that these two things required to be proved by the Intending purchaser are not cumulative; they are alternative. If the intending purchaser proves as an objective fact that legal necessity did exist, then the question whether he had made any enquiry or not is of absolutely academic, if not futile, character. He has to prove the fact that he had made enquiry in a bona fide manner and satisfied himself about the legal necessities before entering into the transaction only when he finds that the burden of proving the existence of legal necessity is too much for him to bear.

To my mind, no authority as such is necessary for this proposition. But if at all one was necessary, it is to be found in the self-same judgment of the Supreme Court, referred to by me above, in the case of Smt. Rani and another v. Smt. Santa Bala Debnath and others, .

The portion of the judgment extracted above itself expounds the law on this point in the same manner in which I have stated the same above. Even as per the observation of the Supreme Court, a purchaser has to prove either the factum of legal necessity or that he made the requisite enquiry regarding the legal necessity. Even according to the Supreme Court, his responsibility is alternative, not cumulative.

17. But to my mind, the submission is not correct even on facts The plaintiff’s brother, who has been examined as the plaintiff’s witness, who was present at all the stages of the transaction, has stated the manner in which he made enquiries. Mr. Paranjape took me through the evidence to satisfy me that the evidence coupled with the fact that there existed actually those huge bank debts should persuade the Court to hold that the plaintiff must have made the necessary enquiry. The Bank official has been examined to prove that the Bank debts existed. The plaintiff’s witness states that he made enquiries with the bank as also with the Municipal Officers. The Municipal Employee has been examined to prove the arrears of municipal tax. The arrears were no doubt of Rs. 593/- and not Rs. 700/-. But the fact remains that defendant No. 1 was not able to pay even that small amount of Rs. 593/- towards the municipal taxes and the tax had remained in arrears for years.

18. Let me turn to the analysis of the three documents and the plaintiff’s evidence, severely assailed by Mr. Rane, and point out the relevant position in that behalf.

The Agreement (Exh. 68) itself mentions three necessities for selling the property :—

(a) carrying on the family business;

(b) family needs; and

(c) benefit of the minors.

The notice given by the plaintiff before the filing of the suit (Exh. 69) mentions four requirements of the family :—

(a) marriages of the daughters;

(b) Court expenses;

(c) education of the children; and

(d) payment of dues owed by the family.

The plaint mentions the following items of legal necessities :—

(a) payment of loan;

(b) marriages of daughters;

(c) Court expenses;

(d) education of children; and

(e) family needs.

In his evidence, the plaintiff witness has stated the following items of legal necessities :—

(a) repayment of loan;

(b) payment of municipal taxes;

(c) marriages of daughters;

(d) education of the children; and

(e) small debts such as those which were owed to milkman, grocer, vendor of sewing machine, etc.

Mr. Rane’s contention is that there has been a gradual improvement made by the plaintiff in connection with the legal necessities and, therefore, it must be held that the plaintiff must not have made enquiries at all. According to him, there exist too many discrepancies and inconsistencies in the items of legal necessity mentioned in these four pieces of evidence and on this account he wants the Court to hold that the plaintiff must not have made the enquiries at all. This is the view taken by the lower Court and he wants to support that view.

I fail to see any justification for such a view at all. In the first place, to my mind, there does not exist much of discrepancy in the items of legal necessity mentioned in the three documents and the evidence. The original Agreement refers to carrying of business, but admittedly the business of the family was of agriculture only. There is no doubt certain amount of vagueness in the recitals such as carrying of business, family needs, benefit of minors, etc. But that reflects upon the draftsman’s skill. It is an admitted fact that the draftsman was brought by defendant No. 1 himself and that he himself purchased the Stamp Paper for the Agreement (Exh. 68). But the point is that each of the three legal necessities mentioned in the Agreement existed at that time. The Bank loan was taken by defendant No. 1 for business of agriculture and he had to repay the loan. It was evidently in that sense that legal necessity mentioned was of carrying of business. By sale of the house, the agricultural lands would be saved resulting in benefit of the minors. Hence benefit of minors was rightly put up as the item of legal necessity. The family needs is a very broad expression. But the breadth of the expression does not vitiate the truth of it.

The Notice mentions marriage, Court expenses, education and demand of dues as items of legal necessity. Now marriages of daughters are certainly covered by the expression “family needs” in the Agreement. Likewise, the Court’s expenses are also covered by the expression “family needs”. The fact that the amount of Rs. 1500/- was received by defendant No. 1 exactly on the date when the Appeal filed by him against the decree of dismissal of the suit was to reach hearing is an admitted fact. The appeal was filed with a view to get the possession of the 1st floor of the suit house, which was a family need. In fact the possession was to be taken because the family needed the possession for its residence. The sale intended to be made for the Court expenses, therefore, could not be the expenses other than the expenses far family needs. The expression “education” is certainly covered by the expression ‘benefit of minors’. The expression “payment of dues” is covered by the expression “carrying of business” used in the Agreement of Sale.

In the plaint, payment of loan is one of the expression used. But it is not something different from the expression “payment of dues” in the Notice (Exh. 69). The other items of necessity, viz. marriage, education, Court fees, are to be found in the earlier two documents as well, directly or indirectly.

In the evidence, the defendant’s witness has stated that the monies were required for repayment of loan, for payment of municipal taxes, for marriage expenses of the daughters, for education of children and for payment of small debts. The municipal taxes are family dues. The existence of these dues is objectively proved. The fact that the children were taking education is admitted. If defendant No. 1 had not agreed to sell the property and had not taken the earnest money from the plaintiff, the children’s education would certainly have suffered. The municipal taxes were afterall family dues.

It will be thus, seen that discrepancy and incosistency in the items of family necessity mentioned in those four documents (three documents in the oral evidence) is more apparent than real. There may be the absence of drafting skill, but the substance is the same. The plaintiff’s witness has stated that he had made enquiries and had learnt about the necessity of repayment of loan, about the arrears of municipal taxes, about the education of children and about the repayment of small debts. I see no reason why he should be dis-believed on that point, particularly when the Court has seen from the entire evidence that all these debts did in fact exist on the date.

19. Only one discrepancy is brought out by Mr. Rane, which is somewhat of a real character. It is that the notice, plaint and the evidence refer to expenses relating to marriages of the daughters as one of the items of legal necessity. The daughters were twins and at that time they were just about 13 years of age. Argument is that there was no question of raising the amount for expenses of their marriages at that time, because the marriages could have taken place only after a few years.

On this point, Mr. Rane may by right. It cannot be said that the item of marriage expenses as an item of legal necessity is proved by the plaintiff. But what the plaintiff’s witness has stated is that that was what he learnt from the defendant. In the context of the falsehood and lies told by defendant No. 1 as also by his wife in the evidence and in view of the fact that all his other evidence is perfectly natural & inconsistent, I would be dis-inclined to hold that the plaintiff’s witness was making a false statement when he stated that the defendant told him about the marriage expenses as item of legal necessity. But even otherwise, even assuming that this item of legal necessity is not proved by the plaintiff, fact remains that all other items of legal necessity are proved and enquiries in that behalf are also proved. The plaintiff’s evidence cannot be discarded only because defendant No. 1’s daughter had not become of a marriageable age on the date of the agreement. The agreement itself does not refer to the marriage expenses at all. Even assuming that there is some improvement on the part of the plaintiff’s witness in this connection, that much of weakness does not damages the main edifice of his evidence. viz. that he made the necessary enquiries and was satisfied about the existence of legal necessity.

20. The next argument of Mr. Rane was that there might exist legal necessity for sale of the lands but not for sale of the residential house. Plea was that the suit house was the only house in which the defendants could reside. If the decree for specific performance was passed, not only the defendant but even his wife and children (defendant Nos. 2 to 6) would be thrown on the streets. According to the learned Counsel, if the agricultural lands were sold, the loss, that would result to the defendants would not be great as would be one cause by sale of the residential house. Plea, therefore, is that not the suit house but the lands ought to have been agreed to be sold and hence legal necessity could be said to exist for sale of the agricultural lands and not for sale of suit house. The further contention was that, in any event, specific performance could not be granted of such an agreement.

The Agreement consists of two parts :—

(a) legal necessity existed for sale of lands but not for sale of house, because by the sale of the house, defendant No. 1’s wife and children would be thrown on the streets;

(b) specific performance cannot be or should not be granted of any agreement the result of which was bound to be of such traumatic character.

So far as the latter part (b) of the argument is concerned, it was reiterated at the time of arguments relating to Court’s discretionary power to grant specific performance. I will deal with it while I deal with that argument. But so far as the former part (a) of the argument is concerned, I must say that it left this Court nothing less than stunned and dumb-struck. The agricultural lands fetched to the defendants their bread and butter. Selling those lands would mean asking the defendants to stand in the breed line. One could easily feel that given the choice, a reasonable or prudent man would opt for selling the house rather than the lands, for the simple reason that even if the house was sold, the defendants could erect some humble farm-house on their lands and live, may be with some hardship. But if the lands were sold, the very wherewithal of the defendants for their basic sustenance would vanish. A view is possible that given the option, a prudent Karta would opt for sale of the residential house rather than for sale of the lands, precisely the thing which defendant No. 1 has done.

But the real point is that the very approach is basically erroneous. The decision to select the particular piece of joint family property for sale when legal necessity for sale arises must rest exclusively with the karta. The purchaser cannot ask him to sell a particular piece of property, nor can Court decide, retrospectively as it were, as to which particular property should have been brought to sale when legal necessity arose for raising the monies. The karta is the Manager. He has to manage the joint family property and deciding as to what piece of joint family property should be sold is, after all, one of the aspects of the management of the property. It is he who is the Manager; neither the intending purchaser nor the Court.

Moreover, the argument leads to anomaly. If instead of the suit house, agreement was entered into by defendant No. 1 for sale of the agricultural lands, objection would have been taken that lands were the principal source of the family’s maintenance and that, hence, not the lands but the house should have been sold. In every event it will be case of “heads, I win, tails, you loss”. Such is the nature of the argument. To my mind, nothing further needs to be observed about the argument except that it needs just to be stated to be rejected.

21. The next point very strenuously urged by Mr. Rane relates to the difference between Sale and Agreement of Sale. Argument was that if the karta of a joint family executes a sale-deed conveying not only his own share but also the share of the other coparceners in the joint family property on the ground of legal necessity, the sale as such will be binding upon the said other coparceners. But, according to him, if the Karta enters into an agreement with an intending purchaser for sale of the same joint family property agreeing to convey not only his own share but also the share of the other coparceners, no suit will lie at the instance of the intending purchaser against the coparceners for specific performance of that agreement even assuming that the intended sale was very much for genuine, pressing undisputable 100% legal necessity. And in support of the proposition Mr. Rane resorted to reliance upon no other authority but the judgment of the Division Bench .

22. Reliance upon the Division Bench judgment in support of the proposition as sought to be formulated by Mr. Rane is, to my mind, most misconceived because, the authority goes along way to reject the proposition. No doubt the Division Bench has held that the power of a Hindu father to alienate his sons’ share in the joint Hindu family property on the basis of pious obligation in his personal power and that when the father enters into a mere agreement to sell the property including his sons’ share, specific performance of the agreement cannot be granted by the Court, because the power which is the father’s personal privilege cannot be exercised by the Court for executing the sale-deed through one of its officers. But while doing so, the Bench has made a specific distinction between the two kinds of powers simultaneously wielded by the Father :—

(a) the power of the father in his capacity as any other Manager of the joint family property to sell the share not only of his sons but even of the other members of the joint family such as brothers etc.; and

(b) the power of the father, not as mere Manager but distinctly as father, to sell his sons’ share in the joint family property based upon the principle of Pious Obligation.

As per the Division Bench, the two powers are not on the same par. And not only that the Division Bench has made this distinction, but it has held, by a strong necessary implication that the power of the father acting as Manager of the joint family to sell his sons’ share in the joint family property for legal necessity is exercisable even by the Court by granting specific performance of the agreement to sell the property including the sons’ share. The following excerpt from the judgment clearly highlights this position quite succinctly :-

“It is one thing to say that an Agreement of transfer can be specifically enforced when it is entered into for a legal necessity and quite another to say that it can as well be enforced on the ground that the father has executed the same on the basis of an antecedent debt incurred by him for his personal benefit.”

23. Mr. Rane made a half-hearted attempt to contend that the above quoted observation of the Bench was an obiter dictum, not necessary for the decision of the case at all.

I do not agree. For expounding the incidence of the doctrine of pious obligation giving personal privilege of Hindu father to alienate his son’s share, it was very much essential bringing out the basic difference between the two concepts—the concept of legal necessity and the concept of pious obligation because the thrust of the argument was that both the concepts were in the ultimate analysis, identical. The observations of the Bench distinguishing the doctrine of pious obligation from the doctrine of legal necessity were, therefore, very much necessary for deciding the question and, hence, they cannot be wished away as mere obiter dicta. They are as much the rationes decidendi as any other principle laid down by the judgment.

24. But the further point is that Mr. Rane himself relied upon the judgment. It is against him. If it is obiter, then he should produce some authority which directly supports the proposition formulated by him. He could produce none, presumably because the principle, as formulated by him is bad even on first principles. A brief jurisprudential discussion on this point should be quite in order. No doubt the legal position brought about by the Transfer of Property Act makes a distinction between the legal effect between a Sale and an Agreement of Sale, the later not creating any legal interest in the property agreed to be transferred. But that does effect the basic jurisprudential position, viz. that every transaction of Sale postulates two sub-transactions; firstly the Agreement of Sale which is an act in personam and secondly the sale proper which is a right in rem. As per our system of jurisprudence, right of property is a right in rem; but it vests in presonam. Voluntary transfer of such right in rem can, therefore, be brought about only by the Act in personam viz. the Agreement of Sale. In other words, every completed sale is brought about by Agreement of Sale, by meeting of minds of the two persons, the vendor and the purchaser. Quite often, there is an interregnum between the two transactions; but there need not be and quite often there is none. The agreement and the sale may come off simultaneously. I walk into a shop and enquire about the price of, say, a pen. The shop-keeper tells me the price; by so telling, he has offered to sell it to me at that price; that is his offer to sell. I accept the offer, say, by tendering that amount; I have accepted the offer; the agreement is complete. He delivers to me the pen and accept the monies; the sale is complete. The entire transaction superficially appeared to be just one transaction. But it invariably contains two inevitable sub-transaction : first of agreement to sell, second of the sale proper.

The first-point emerging from this discussion is that one cannot run away from the fact that inherent in every transaction of a voluntary sale is the other initiating transaction of agreement of sale. The second point, which is more material for our question is that the extent of the interregnum in these two transactions is theoretically immaterial. If the agreement is valid, the sale would also be valid. This rule of law will subject to only one qualification viz. the occurrence of any subsequent event, bringing about frustration, may make the agreement invalid subsequently in which no sale could be effected and if effected, it might become invalid. Point is that so long as the agreement continue to be valid, the sale to be effected in pursuance of the same will have to be held as valid.

25. Coming to the brass-tacks, what event has sup-ervened, since the date of the agreement till the date of the suit, rendering the suit agreement invalid. Mr. Rane could point his finger at none although he continue to harp upon the legal difference between a suit for setting aside alienation based on legal necessity and an agreement for alienation based upon identical legal necessity. Of course, there exists difference. Section 54 of the Transfer of Property Act it self spells such difference. But the difference is irrelevant for the issue under consideration.

Look at the anomaly were it to be otherwise. In the instant case, amount of Rs. 11,500/- out of the total price of Rs. 20,000/- has been paid by the plaintiff. But on the basis of the proposition formulated by Mr. Rane, even if the entire amount of Rs. 20,000/- was paid by the plaintiff, still he could not get specific performance of the agreement from the Court. If he had taken the sale-deed immediately, there and then, it would be binding upon defendant Nos. 2 to 6. But if he was imprudent enough not to take immediate sale but innocently gave time to the defendants for making alternative arrangements for their residence, that act of mercy on the part of the plaintiff would give right to avoid the sale and would disentitle the plaintiff from getting the Court’s help to get the sale-deed, by a decree for specific performance; The remedy of specific performance is an equitable remedy. What kind of equity would it be which punishes the plaintiff who comes to it just because he has done an act of a Good Samaritan to the defendant and rewards the defendant for his outstanding act of ingratitude ?

26. It would have been possible for defendants Nos. 2 to 6 to contend successfully that the suit agreement was not binding upon them and to avoid the sale if they had pleaded and proved that some time before the date of the suit, whether before or after the date of the suit agreement, the joint family headed by defendant No. 1 had disrupted by virtue of the partition amongst the defendants. It would be a possible view (although on the point I wish to keep my fingers crossed) that even during the pendency of the suit and perhaps, even during the pendency of the suit and perhaps, even during the pendency of this appeal, the defendants could have effected a partition amongst themselves. Had such a partition taken place before the date of the suit, a real and legitimate defence would be available for the defendants to the plaintiff’s suit for specific performance. This is so, because the power of a Hindu Manager to sell the share of other coparceners in the ancestral property only so long as the other coparceners are joint with him. Upon the partition, the said power of the Manager just vanishes. The relevance of this legal position lies in the fact that the suit agreement created no interest in the suit property in favour of the plaintiff. The interest could be created only by a sale-deed in respect of the suit house in the plaintiff’s favour. But if before the execution of the sale-deed, the partition amongst the defendants was complete, defendants would have had nothing to execute the sale-deed about except, of course, his own just 1/5th share in the suit house. As mentioned above, it is a possible view that the same position would have obtained even if there was a genuine partition amongst the defendants even during the pendency of this appeal. Significantly enough, defendant No. 1 has made quite an emphatic statement (which turns out to be a glaringly false statement) in his Written Statement that there was no joint family of the defendants even on the date of the suit agreement and that he was not a karta of the same. His statement, however, cut across the written statement of the other defendants who insisted that all the defendants were joint and that defendant No. 1 was its karta even on the date of the suit. The evidence to the same effect was given by the mother of defendants No. 2 to 6. What is even more significant is that this position continued even after the trial Court’s decree and even during the pendency of this appeal and even at the time of the hearing of this appeal. In fact, as stated above, Mr. Rane made a categorical statement before the Court that all the defendants continue to be the members of the same joint family and that defendant No. 1 continues to be the karta of the same even till that date. This means that the defendants want to take all the advantages ensuring from the joint status. But when the question of risk of the other defendants’ share in the joint family property is required to be faced, they want to disown that liability.

27. Mr. Rane then argued that there exists no evidence to show that any part of the amount of Rs. 11,500/- received by defendant No. 1 from the plaintiff was in fact applied by him for payment of debts and hence specific performance should be refused. I may mention here that this was not an argument in support of a possible contention that non-payment of the debts was a supervening event making the agreement invalid. In fact no plea of the existence of supervening event of any kind whatsoever is set up at all. But even if such plea was raised, it would be devoid of any substance in the context of the law settled as it is. The legal position is that it is not at all the duty of the purchaser to worry about the application of the sale-proceeds by the karta. The sale does not become invalid merely because the sale-proceeds are not applied by the karta to the purpose of legal necessity for which the property was sold. From the very nature of things, it would be impossible for the purchaser to keep control over the karta once the monies are paid by the purchaser to him and neither equity nor law expects the purchaser to undertake the performance of such impossibility. What applies to purchaser applies, with equal force to an intending purchaser who has paid the full purchase money and what applies to the latter applies with equal force to an intending purchaser who has paid only a part of the purchase money. The crucial question is whether the agreement became invalid by virtue of any supervening event. The answer is in the negative because no supervening event came off and this is so because non-application of the funds to the purpose to the intended sale cannot be regarded as such supervening event.

28. When he embarked upon his arguments, Mr. Rane, specifically stated before the Court that excepting the two points, viz. that—

(a) there existed no legal necessity because the debts had not become due and payable on the date of the agreement;

(b) there existed a difference between sale and agreement of sale and though sale by the karta for legal necessity may be valid by the Court, agreement of sale even for legal necessity cannot be specifically enforced by the Court.

no other point urged by any of the defendants was going to be canvassed by him. Even then, during the course of his arguments, probably because he felt that he was fighting a losing battle in this Court, he urged two more points, one, of his own; the other picked up from the written statements of the defendants. Point one was that there may exist legal necessity for sale of the agricultural lands but not for sale of the suit house. What it boiled down to was when there are a number of properties available to the karta for sale on the ground of legal necessity, legal necessity exists for sale of every item of property except the one which is actually sold. If agreement for sale was in respect of the lands argument would have been in respect of the house and vice versa. A plea basically not every different from the famous assurance given by the Queen in Alice in Wonderland. “Jam yesterday, jam tomorrow; no jam today.”

I have already dealt with and rejected that plea. The other plea raised by Mr. Rane with evident half-heartedness was the contention that the suit agreement was not intended to be acted upon. In the Written Statements, the defendants have no doubt raised this point, but in an entirely different context. Their contention was that whatever the amount that was received by defendant No. 1 from the plaintiff was by way of loan and that the suit agreement was signed by the 1st defendant as a document of security. It was in this sense that it was contended that the agreement of Sale as such was not to be acted upon. Defendant Nos. 2 to 6 have simply stated that it was not intended to be acted upon. They also raised some such plea as the transaction having been one of loan. But the point is that the defendants were never serious about this contention. The very 1st issue framed by the trial Court relates to this issue is as follows :

“Whether defendant No. 1 shows that the agreement to sell was not to be acted upon as such” ?

The issue has been examined by the learned Judge in Para 7 of his judgment. In this connection, the learned Judge has observed that :—

“Except the bare word of defendant No. 1, there is nothing on record to show that the agreement to sell was not to be acted upon.”

The learned judge has further pointed out that the Agreement to sell (Exh. 68) is written by a scribe named Sangle. It has been attested by one Chandmal Panalal Bhansali and the amount of Earnest Money of Rs. 7000/- was paid in the presence of witnesses. The Stamp Paper for this agreement was brought by defendant No. 1 himself. The scribe Sangle was called by himself. He further stated that the plaintiff told the contents of the agreement to the scribe Sangle in his (defendant No. 1’s) presence. No evidence is led to prove that the price of the house was in any way lesser than what was stipulated in the agreement. In this connection, it is to be noted that what was to be received by the plaintiff was possession of the 1st floor flat only because he was already in possession of the ground floor flat as a tenant. Not one incident is shown from which it can be stated that the price of Rs. 20,000/- was in any way inadequate in the slightest manner. It was contended in the written Statement that the plaintiff was a moneylender, but was having no licence for carrying of the business of moneylending, which was the reason why instead of showing the transaction to be a loan transaction, it was shown as a sale transaction. But in his evidence defendant No. 1 has specifically admitted that the plaintiff does not do any money lending business at all. As stated above, this means that defendant No. 1 has told a blatant lie in his Written Statement when he averred that the plaintiff was a money-lender and that the suit transaction was couched in the word of Agreement of Sale with a view to screen the real transaction. The plaintiff had the capacity to purchase the house. He had in fact already shelled out his hard-earned monies of Rs. 11,500/- for the purchase of the flat. He had the necessity to purchase the house because he was already staying on the ground floor as his family was growing. His relationship with defendant No. 1 was good because, on his own showing, defendant No. 1 had taken hand-loads from him previously and on his own showing no such document was taken from the plaintiff for securing those hand-loads. If all these circumstances are taken into account, it is impossible to hold that the Agreement of Sale was not intended to be acted upon.

The argument was advanced evidently as an attempt to clutch at any straw that came the Counsel’s way. I am not happy that such arguments of desperation should be advanced by an eminent Counsel, particularly when they are already given up at the outset because there existed no substance in them.

29. This brings me to the last but strenuously emphasised argument of Mr. Rane viz. that this is not a case where a Court of equity should grant specific performance of an Agreement to Sell.

The contention is two fold :—

(i) Even assuming that legal necessities existed for defendant No. 1 to sell the suit house to the plaintiff at the time of the agreement, still the share of defendant Nos. 2 to 4 and of the wife of defendant No. 1 was being sold on the ground of legal necessity and hence, the agreement should not be allowed to be specifically enforced; and

(ii) that in any event the Court of enquity should not grant specific performance of such an agreement when the effect of the decree of specific performance is going to be that the defendants are likely to be thrown on the streets.

30. The 1st part of the argument need not detain us much. To my mind, the judgment of the Division Bench which has been relied so strenuously by Mr. Rant himself disentitles himself to raise such a plea. The Division Bench has held by necessary implication of the most emphatic character that though the father’s power to alienate son’s share in the joint family property, based upon the principle of pious obligations, cannot be exercised by the Court for granting decree for specific performance of the agreement entered into by the father, the power of the father acting as a Manager to alienate the share of the sons and other coparceners in the joint family property can be exercised by the Court. Whether the Court ought to exercise the power or not will depend upon the consideration of equity. But no principle of Hindu Law as such is involved in the same.

The main question, however, is the second question which has been agitated quite strenuously and, to my mind, quite unjustifiably by the learned Counsel. Contention is that howsoever honest and bona fide claim the plaintiff may be having for specific performance, no decree for specific performance for execution of the Sale Deed should be passed, because as a result of the decree the defendants are likely to be thrown on the street.

31. I, at least, cannot conceive of an argument more replete with fallacies.

In the first place, if such an argument is held as tenable, no agreement of sale of any house, which is the only residential house of the vendor and his family, can be entered into. The argument which poses as one based on a great principle of equity is an argument of mercy not of equity. What is being invoked is the jurisdiction of mercy which this Court, by and large does not possess. I call it as an argument of mere because it involves no recognised principle of equity at all. Argument is that specific performance should not be granted because hardship would be caused to the defendants by a decree for specific performance and possession. But such result is invitable in every case where the vendor agrees to sell his only residential house. The position in such case would be no way different if the suit house was the self-acquired property of defendant No. 1 in which he was staying with his family. If he did not sell the house by private agreement, it would be sold in Court auction because for payment of the debts for which the suit was bound to be filed. In fact Mr. Rane himself made a statement across the bar that all other property of the joint family is already sold in Court auction for payment of those dues, No argument has been made or entertained in those cases that by sale of those properties, the defendants have been required to stand in the breed-line. The famous rule that hard cases make bad law still holds good. In fact just with a view to avoid another hardship of similar or greater extent, likely to be caused to all the defendants, defendant No. 1 entered into the suit agreement. He preferred one hardship to the other with open eyes. Evidence on record leaves no room for doubt that his wife was fully aware of this agreement at all the times. In fact she is a party to a sale-deed, Exh. 100. in respect of the other house of the joint family. The fallacy lies in equating the principle of enquity with that of mercy. Courts of equity are not Courts of mercy. For mercy, the defendants should have come to terms with the plaintiff. What have they done for this? I have not had occasion to examine the evidence at length in this judgment because most of the contentions urged by the defendants in the lower Court for defeating the plaintiff’s suit were specifically given up by Mr. Rane at the time of his arguments. But that was after (and probably because) I had examined the entire evidence, both oral and documentary, thread-bare. And one thing that stands out from the evidence is that the plaintiff has come to the Court of equity with an honest, sincere and genuine case, with clean hands as the maxim or equity requires. He was in genuine need of the house he saw that the defendants were in genuine need to sell the house; all the same he took no undue advantage of precarious condition of the defendants, did not under -bid them; offered the market price that could be fetched by the house at that time. In this connection, it needs to be noted that on the date of the suit agreement, the entire house was in possession of the tenants; the suit filed against first floor tenant was dismissed by the trial Court; the defendants did not have even the monies to prosecute the appeal filed against the said decree. Defendant No. 1 received a sum of Rs. 1500/-, towards the sale price of the suit house on the same date on which the appeal in question was to be heard, made an endorsement on the suit agreement to the effect that the monies were received for Court-expenses and got the appeal ultimately allowed in his favour by taking a decree by consent.

It is not as if that the plaintiff is any Savkar or money-lender or of the affluent class. He is just a middle-class person, making his living with honest sweat of his brow. The fact that he is not so is stated by defendant No. 1 himself in his evidence. In fact reading his evidence as a whole leaves an impression that the defendant is inclined to be contemptuous about him. He has stated that the plaintiff just sells chivda.

This, therefore, is not a case where a poor defendant is pitted against a mighty plaintiff, trying to exploit the condition of the defendants’ poverty. It is an honest transaction by a person of humdrum station in life with a family which wanted to be saved from an impending disaster. He has not taken the slightest advantage of the fact that the family is on the brink of the precipice.

And what is the conduct of the defendants who are clamouring for mercy from the Courts of equity. No housing shown, no fairplay displayed. Baseless allegations are made against the plaintiff. He is abused as dishonest money-lender; he is condemned as a cheat taking receipts for larger amounts than those actually paid. Every such allegation has been found to be false not only by this Court but even by the trial Court. The plaintiff has come to equity with clean hands; the hands of the defendants in this Court of equity are quite dirty. Their conduct is of the serpant that biteth the very hand that feedeth them the milk.

32. But the protestation of poverty and hardship is fake; just a pose. An argument of convenience advanced when arguments of desperation failed. In the arguments, what is urged is poverty; in the written statement of defendants Nos. 2 to 6 what is pleaded is affluence.

May be that at present defendants Nos. 2 to 6 are really poor. On their behalf, it is contended that their present poverty is the result of their father’s extravagance. This is being contended for the last about 15 years. At the time of the suit, the three sons, defendants Nos. 2 to 4, were minors all of them have now become majors. The oldest of them is about 29 years, the youngest is about 25 years. During their minority, their mother was their spokesman; she was determined not to have any partition from her husband ; even after they attained majority, the sons, defendants Nos. 2 to 4, have chosen to remain joint with their father, even at the risk of their share in the joint family property being sold for legal necessity. The complexion of poverty is just skin-deep.

33. The protestation of hardship is equally illusory. This is exposed by the fact that these defendants are not prepared to execute the sale-deed even when all their fear of hardship is removed by the most noble gesture on the part of the plaintiff. He was agreeable to keep the defendants as his tenants on the first floor of the suit house. The difficulty of finding a place for residence is, therefore, solved. The defendants were not prepared to accept this offer. The plaintiff has, therefore, filled an affidavit in this Court, which is taken on record, that he is prepared to continue in possession of the first floor of the suit house even after the decree for specific performance. And for doing so, he does not expect even any reduction in the price of the house. The defendants are in no mood to accept even this offer. It is thus clear that their sole desire is to prolong the litigation and to drag the plaintiff from Court to Court.

Mr. Paranjape went even to the extent of making a statement to Court that this Court was at liberty to pall as order in invitum directing the plaintiff to give the 1st floor of the suit house to the defendants on lease on such terms and from such date as this Court may deem fir.

For the reasons which will be presently stated, this Court cannot pass such an order in invitum. But I mention this fact only with a view to show that the conduct of the plaintiff has been quite examplary, whereas the conduct of the defendants leaves far to be desired.

34. Mr. Rane has been protesting all the time during the course of this arguments that he did not hold brief for defendants No. 1 and that there was a conflict of interests between defendant No. 1 on the one hand and the remaining defendants on the other. But the evidence on record leaves no room for doubt that all these defendants are colluding with each other no end and they are all united to down the plaintiff.

For all the reasons mentioned above, the Appeal has got to be allowed and the same is hereby being allowed. The decree passed by the lower Court is set aside and the plaintiff’s suit for specific performance is decreed with costs throughout.

35. I have referred above to the affidavit filed by the plaintiff showing his willingness to give the tenancy rights in respect of the 1st floor of the suit house to the defendant. Mr. Paranjape went even to, the extent of showing his willingness to submit to an order of this Court in this behalf in invitum. This concession is made by the learned Counsel with a view to take the wind out of the sail of Mr. Rane’s arguments relating to the projected hardship.

I find quite some difficulty in passing such an order in invitum. Tenancy is not something as can be imposed by the Court upon a party to any proceeding. The rent has to be fixed and the other terms of tenancy have to be arrived at. This can be done by the agreement of parties, not by order of the Court. Since the plaintiff succeeds fully, the decree for specific performance simplicitor is the only order conceivable.

Hence, ordered as above.