( 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-defendants 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 tendered, 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 o

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