- (1.)Being aggrieved by the judgment and decree dated 26th August, 1992 in Civil Appeal No.512 of 1986 passed by 7th Additional District Judge, Nasik by which the appeal was partly allowed and the decree for execution of sale deed in favour of the appellants plaintiffs in Special Civil Suit No.63 of 1982 passed on 27th June, 1986 by Joint Civil Judge, Senior Division, Nasik was modified only to the extent of 1/5th share of deceased Ramchandra Tukaram Kasbe, the present Appeal was filed by the partly unsuccessful plaintiffs.
The facts of the case are as follows:

(2.)The appellants plaintiffs who are the original plaintiffs filed Special Civil Suit No.63 of 1982 and stated that the suit land Gut No.368 admeasuring 4H 69.4R belonging to the defendant Ramchandra Tukaram Kasbe was agreed to be sold to the plaintiffs by him for a total consideration of Rs.24,200/.
The defendant Ramchandra had mortgaged the land with Nasik District Coop. Land Development Bank for sinking the well in Gut No.109 in the year 1970 but he could not repay the loan and the bank had threatened to put his land to auction in the year 1981. Respondent defendant had no other option than to dispose of the suit property to repay the loan and that is why the suit land was put to sale. Upon negotiations, the price was fixed and earnest amount of Rs.7300/was agreed to be paid and the agreement was executed on 1st August, 1981. The possession of the suit land was delivered pursuant to the said agreement dated 1st August 1981 to the appellants plaintiffs along with the standing crops. The sale deed was to be executed within one year by making payment of the entire loan outstanding amount to the bank. The respondent Ramchandra was Karta of Hindu Joint Family and had agreed to sell the suit land for the benefit of Joint Family. The plaintiffs paid Rs.7300/to defendant and deposited Rs.5000.65ps. with the Land Development Bank on 3.9.80 towards the outstanding loan. The plaintiffs were always ready and willing to perform their part of the contract but defendant changed his mind and did not perform his part of the contract and avoided to execute the sale deed. Not only that the defendant refused to furnish information as to the outstanding loan amount and finally refused to execute the sale deed in the month of March 1982. The appellants then came to know that defendant had in fact repaid the whole amount to the bank and thus, committed breach of the contract and it was essential to file the suit in question. The suit was resisted by the defendant by filing written statement at Ex.16. The defendant admitted about the loan on the suit property and the insistence of the bank for repayment. He also admitted execution of the document of agreement dt.1st August, 1981 in favour of the plaintiffs. But he further submitted that he was in financial difficulty due to the pressure from the bank to repay the loan amount and therefore, asked the plaintiffs for some loan amount who agreed to give loan due to friendly relations but the plaintiffs wanted the document by way of security for loan which was executed by Ramchandra alone. The transaction was thus, a loan transaction not to be acted upon and the document was to be destroyed. The defendant respondent being in disturbed state of mind executed the agreement Ex.51 due to helplessness. He denied the delivery of possession so also the receipt of amount of Rs.7300/and that the amount of Rs.5000/was to be deposited in the bank on the next working day after the agreement and the amount of Rs.2300/was to be paid to Ambadas Ramu Ugle.

The amount of Rs.2300/was not paid to Ambadas and the plaintiffs straightway deposited Rs.5000/out of Rs.7300/in the bank. The payment of Rs.5000/alleged by the plaintiff was the same amount and not separate from the amount of Rs.7300/.

The plaintiffs did not pay the amount of the entire amount of the loan in the bank and it was the defendant who was required to dispose of his other field property and make payment therefrom of the entire loan amount on 7th April, 1982. It was thus the plaintiffs who committed the breach of contract and therefore he made counter claim. The defendant also took a stand in the written statement that the suit property was ancestral property and could not have been agreed to be sold by him alone since he had only 1/5th share in the suit property. The transaction was merely a loan transaction and the appellants plaintiffs fully knew about the joint nature of the property. He therefore, resisted the decree for specific performance. The trial Judge in all framed 29 issues and finally decreed the suit for specific performance of the contract in respect of entire suit property, by judgment and decree dt.27th June, 1986. On appeal, the learned lower appellate court partly allowed defendant's appeal and granted decree in favour of the plaintiffs to the extent only of 1/5th share only of the defendant Ramchandra. Being aggrieved by the said decree of the lower appellate court, the instant Second Appeal was filed by the plaintiffs in this court.

ARGUMENTS:

(3.)In support of the appeal, the learned counsel for the appellant made the following submissions:
(i) That the lower appellate court committed error in holding that the respondent Ramchandra had no authority to agree to sell the suit property in entirety to the appellants plaintiffs. Even from the case pleaded by the respondent defendant and the evidence on record, it was clearly established that the suit property was agreed to be sold for the legal necessity namely the financial pressure from the land development bank which had been pressurizing him for making repayment of the loan that was advanced.

(ii) Though the legal necessity for sale of the suit property to the appellants plaintiffs was duly established the lower appellate court erred in refusing the decree for the entire suit property. The deceased Ramchandra acted as a 'karta' of the family and for saving the suit land from being auctioned by the land development bank he agreed to sell the suit property to the appellants and that was obviously for the benefit of the family and the estate.

(iii) In the light of the several decisions and the legal position that even if the other members/coparceners in the joint hindu family are adults, the Manager or the Karta of the family is entitled to sell the suit property for the benefit of the family or for the benefit of the estate. In the instant case the need was writ large namely, to save the suit property and therefore the agreement Ex.51 by Ramchandra was executed acting as Karta of the family.

The lower appellate court committed a grave error in ignoring the said aspect. Not only that the two adult sons of Ramchandra in fact had signed the agreement as attesting witness and therefore their consent for sale must be inferred. The lower appellate court however ignored all these aspects of the matter. It was only the third son Yashwant who had not signed the agreement and the wife of Ramchandra but then that would make no difference if Ramchandra had decided to sell the suit property with the consent of the other two sons and would bind the family.

(iv) The lower appellate court committed an error in reversing the finding of fact and the decree made by the trial court which held that the defendant Ramchandra and his sons had deliberately with a view to thwart the claim of the appellant issued public notice dated 29th March, 1982 Ex.67 and had instituted a Special C.S. No.56 of 1984 for partition. That was a ploy to defeat the claim of the appellant since the said Civil Suit No.56 of 1984 was ultimately dismissed on 20th January, 1992. Thus, defendant Ramchandra and his sons had changed their mind and decided to breach the agreement by taking the appellants plaintiffs for a ride.

(v) Though period of execution of sale as per Ex.51 was one year the respondent did not wait for the said period but deliberately made repayment of the entire loan amount themselves in order to defeat the legal remedy of the appellants.

(vi) The lower appellate court did not frame any point for determination in the impugned judgment contrary to the procedure prescribed by Civil Procedure code and therefore, this court may think of making remand order to the lower appellate court.

(vii) Continuing the submissions the learned counsel for the appellants submitted that the lower appellate court committed an error restricting the decree for specific performance only to the extent of 1/5th share of defendant Ramchandra ignoring the fact that under Ex.51 the entire suit property was agreed to be sold due to legal necessity.

(viii) The lower appellate court could not make the payment of additional compensation which the appellants are even now ready to offer in the light of the various decisions of the Apex Court.

(ix) The lower appellate court committed an error in ignoring the fact that the appellants were found in possession of the suit property and paid substantial amount.

(x) The lower appellate court erred in not applying the law correctly as to the alienation of the property acting as Karta of the family for the benefit of the estate or for the benefit of the family.