JUDGMENT
R.C. Chavan, J.
1. The appellant, original plaintiff in Special Civil Suit No. 428 of 1989, has challenged the appellate judgment of the learned 9th Additional District Judge, Nagpur, whereby he set aside the decree of specific performance passed in her favour by the learned Trial Judge and merely directed refund of consideration to her.
2. The facts, which gave rise to the litigation, are as under:
3. On 14-12-1988, the respondent, defendant herein, agreed to sell the suit field to the appellant/plaintiff for a consideration of Rs. 32,500/-, received Rs. 5,000/- as earnest and executed an agreement, which is at Exhibit 37 on the record of the trial Court. The balance of consideration of Rs. 27,500/- was to be paid on 29-6-1989, when the sale-deed was to be executed. Since the appellant/plaintiff came to know of the respondent-defendant’s attempt to dispose of the property elsewhere, she gave a notice to the defendant on 16-3-1989, to which the defendant gave a false reply contending that the transaction was one of loan. The plaintiff, therefore, approached the trial Court seeking a decree of specific performance of the contract of sale stating that she was ready and willing to pay a balance of consideration of Rs. 27,500/-.
4. The respondent/defendant contested the suit by stating that the transaction was one of loan of Rs. 5,000/-, that he had no necessity of selling the suit land and that the earnest note was scribed just by way of security for repayment of loan. He also stated that the property was ancestral and he was not the sole owner and, therefore, he will not be in a position to sell the property to the appellant/plaintiff.
5. After considering the evidence rendered, the learned Trial Judge held in favour of the plaintiff and decreed the suit for specific performance of agreement of sale. Aggrieved thereby, the defendant filed an appeal before the District Court at Nagpur, which came to be decided by the learned 9th Additional District Judge, Nagpur, who set aside the decree of specific performance and granted refund of earnest. Aggrieved thereby, the plaintiff has preferred this appeal.
6. The appeal was admitted on 16-10-1997 to consider the following two substantial questions of law framed in the memo of appeal:
(a) Upon partition of the immovable property the husband acquired separate share, whether during his lifetime the wife acquires any right in the same?
(b) Whether father as a Karta has right to alienate the ancestral property for legal necessity and bind the share of the son also?
7. I have heard Shri A. G. Gharote, the learned Counsel for the appellant/plaintiff, and Shri N. K. Deshpande, the learned Counsel for the respondent/defendant.
8. The respondent/defendant has not disputed that he executed an agreement of sale and also that he received a sum of Rs. 5,000/-. His defence, that he had executed the document as a security for loan, has been rejected by the trial Court. The learned 9th Additional District Judge unfortunately has not framed points for determination to reflect the questions in controversy raised by the pleadings, which he ought to have done as the final Court of facts. The learned Appellate Judge seems to have considered the agreement of sale as duly established, but proceeded to examine only the question whether the respondent/defendant had the right to sell the property or whether such sale could be ordered by way of specific performance in face of the plea that the respondent/defendant was not the sole owner. Thus, the fact that the respondent/defendant had agreed to sell the suit property to the appellant/plaintiff is not disputable before this Court now.
9. The arguments advanced before the learned Judge of the First Appellate Court seem to revolve round the ownership of the property by the joint family. The learned Judge came to hold that the respondent/defendant was mere Karta of the family, which owned the property, and since legal necessity had not been pleaded or proved, the suit could not be decreed. He further went on to observe that the wife of the respondent/defendant and his minor son were not make parties to the suit and, therefore, specific performance could not be granted.
10. First, when it was proved that the respondent/defendant had executed an agreement of sale of property, which stood in his name, there should have been no hitch in granting specific performance of contract. Having entered into an agreement of sale, the respondent/defendant was bound to honour his word and execute the sale-deed. Whether such sale-deed would have been binding upon other members of the joint family was not an issue before the Court because the respondent/defendant was not fighting the suit on behalf of other members and could not have done so. There was no question of appellant/plaintiff being required to join the respondent defendant’s wife and son because he was simply seeking specific performance of an agreement of sale entered into by the respondent/defendant in her favour.
11. It is settled that a person may sell even property which does not belong to him and the purchaser gets a title as and when the seller acquires title to the property. Therefore, the appellant/plaintiff could have got such part of the property as belonged to the respondent/defendant. It was plaintiffs worry. The respondent/defendant should not have been allowed to fight a proxy litigation on behalf of wife and son or to hide behind the imaginary rights of his wife and son to evade the consequences of his own actions, without saying that he had taken the money for any immoral purpose or to feed his vices. If after decree of specific performance is passed and the property passes to the appellant/plaintiff, the respondent-defendant’s wife and son feel aggrieved, they could file a suit, should they have a cause of action, for setting aside alienation so far as it related to their share, if any. First, there was no question of considering the claims of respondent-defendant’s wife and son, who were not before the Court. Secondly, the respondent-defendant’s wife would have been in a position to claim a share either upon a demand of partition by her son or upon the death of her husband, none of which events are shown to have occurred.
12. As to the question of the nature of interest acquired by the respondent/defendant, suffice it to observe that prima facie since he has got the property in partition, it would take the character of ancestral property, and his son may have a birth right in it. However, during his life-time his wife cannot claim any right therein so long as she resides with her husband and there is no further partition in the family. Therefore, the first substantial question of law, which has been formulated in the memo of appeal, on which the appeal was admitted, would have to be answered in the negative.
13. The learned Counsel for the appellant/plaintiff submitted that as a consequence of operation of Section 8 of Hindu Succession Act, the property in the hands of the respondent/defendant, which came to him upon inheritance, ceases to be a co-parcenary property in which the respondent-defendant’s son would have no interest. For this purpose, he drew my attention to the following decisions:
(1) The Additional Commissioner of Income-tax, Madras-1 v. P.L. Karuppan Chettiar (2) Commissioner of Wealth-tax, Kanpur, etc. v. Chander Sen etc. (3) Chandrakant and Anr. v. Ashok Kumar and Ors. 2003(1) Civil L J 340.
14. In the instant case, it is not the respondent/defendant’s contention that the property has come to him by inheritance. It is also not specifically pleaded by the appellant/plaintiff as to how the defendant had come to own the property. The plaintiffs evidence also does not show that the property had come to the defendant by operation of Section 8 of the Hindu Succession Act. The cross-examination of defendant on behalf of the plaintiff would show that the defendant stated that his father had made a partition and each brother had got 9 acres of land in partition. Thus, it is not that the defendant inherited the property. He in fact got it in a partition effected by his father, implying that he got a share to which he was entitled to by the birth in the family and not by way of succession. Therefore, the decisions on which the learned Counsel for the appellant/plaintiff places reliance have no bearing.
15. The learned Counsel for the respondent/defendant, relying on a decision of Patna High Court in the case of Bageshwari Prasad Duivedi v. Deopati Kuer and Anr. , submitted that the agreement executed by the respondent/defendant not being for legal necessity would not bind the interest of respondent-defendant’s wife and son. The facts in that case were slightly different. In that case, defendant No. 1 had entered into an agreement to lease the property for himself and for the benefit of his minor cousin defendant No. 2. When the defendants avoided to execute the lease, the plaintiff filed the suit. Defendant No. 2 contested the suit contending that he was not joint with defendant No. 1 and defendant No. 1 was not the Karta. It also transpired that defendants No. 1 and 2 had divided the ancestral property by metes and bounds by registered partition-deed. It is in this context that the Court observed that the agreement executed by defendant No. 1 not being for legal necessity or benefit of the estate, could not bind the interest of defendant No. 2 and, therefore, the plaintiff could not enforce the agreement as against defendant No. 2. The Court went on to hold that the plaintiff was not entitled to any relief even against defendant No. 1, the defendants being joint and governed by the law of Mitakshara, the contract could not be enforced against defendant No. 1 even in respect of his undivided interest.
16. It may be seen that the facts of the case at hand are altogether different and, therefore, the observations of the High Court at Patna are not applicable to the present case. Since the respondent/defendant may be taken to be the Karta of the family, he has a right to alienate the property. Whether legal necessity existed or not is a question, which would arise after the alienation is challenged. Since alienation has not been challenged and since even the defendant has not pleaded any wantonness on his part putting a transaction entered into by him under a cloud, there is no need to consider this question. If the sale is for legal necessity, it would bind everyone including the son. If aggrieved by the decree, the respondent-defendant’s son may seek to have the alienation set aside so far as it affects his rights. Therefore, hypothetically, the second question formulated in the memo of appeal would have to be answered in the affirmative.
17. If the view taken by the learned Additional District Judge were to be upheld, no Hindu father would ever be able to enter into any transaction of property, which came to him. In view of this, it is clear that the learned Additional District Judge was not justified in upsetting the judgment passed by the trial Court.
18. In view of this, the appeal is allowed. The judgment and decree passed by the learned First Appellate Court is set aside and that passed by the learned trial Court is restored.