Judgement

MUDHOLKAR, J. : This is a plaintiff s appeal from the dismissal of his suit for specific performance of a contract for the sale of 3/20th share of land in certain fields situated in Mauza Faizpur of Batala in the State of Punjab. He had instituted the suit in the court of Sub-Judge- First Class, Batala, who dismissed it in its entirety. Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff s claim for specific performance modified the decree of the trial court in regard to one matter. By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas. It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were, therefore, substituted in his place. Aggrieved by the dismissal of his claim for specific performance the plaintiff has come up to this Court by a certificate granted by the High Court, under Art. 133 of the Constitution.

2-3. The relevant facts are these :

The plaintiff owned 79/120th share in Khasra Nos. 494, 495, 496, 497, 1800/501, 1801/501, and 529 shown in the zamabandi of 1943-44, situate at Mauza Faizpur of Batala. On October, 1943, he purchased 23/120th share in this land belonging to one Devisahai. He thus became owner of 17/20th share in this land. The remaining 3/20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram, Khemchand and Satyapal were the members. According to the plaintiff he paid Rs. 175/- per marla for the land which he purchased from Devisahai. In order to consolidate his holding, the plaintiff desired to acquire the 3/20th share held by the joint family of Pindidas and his brothers. He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3/20th share belonging to the family at the rate of Rs. 250/- per marla. The contract in this regard was entered into on October 1, 1945 with Pindidas and Rs. 100/- were paid to him as earnest money. As the Manager of the family failed to execute the sale-deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto.

4. The suit was resisted by all the defendants. Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1, 1945 and of having received Rs. 100/- as earnest money. According to him, however, that contract pertained not to the land in suit but to another piece of land. He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants 2 to 4 to the suit and are now respondents 13 to 15 before us. The defendants 2 to 4 denied the existence of any contract and further pleaded that even if Pindidas was proved to be the Karta of the joint family and had agreed to sell the land in suit the transaction was not binding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale. The courts below have found in the plaintiff s favour that Pindidas did enter into a contract with him for the sale of 3/20th share of the family land in suit and received Rs. 100 as earnest money. But they held that the contract was not binding on the family because there was no necessity for the sale and the contract was not for the benefit of the family.

5. It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent circumstances and that there was no necessity for the sale. But according to him, the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and, therefore, by converting it into money the family stood to gain. He further pointed out that whereas the value of the land at the date of the transaction was Rs. 175 per marla only the plainti