2014 Supreme(Bom) 1995

High Court of Judicature at Bombay
A.B. CHAUDHARI, J.
Kashinath Rajaram Kasabe & Others – Appellant
Versus
Ramchandra Tukaram Kasabe, deceased as per LRs. & Others – Respondent
Second Appeal No. 563 of 1992 & With Cross Objection (St). No. 22235 of 2009
Decided On : 8-10-2014

Headnote:Hindu Law - Agreement to sell joint family property. In absence of consent of all family members of defendant, agreement to sell joint family property made by only defendant cannot be executed. The authority in the karta would not be absolute particularly when as pointed out earlier except Ramchandra none agreed to sell the suit property and on the contrary there was a resistance from the sons.

       The karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct.

       The exceptional circumstances, however, the Court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family a reconvinced that the proposed purchase of the new property is for the benefit of the estate.

       The legal position is apt in the fact situation present in this case. It is anxious to note that though the appellants fully knew that the suit property was ancestral property and three sons and wife of Ramchandra had interest therein and when it was the case of the appellants that the property was sold out for legal necessity none of the sons were even joined as a party to the suit which is an indicator of the fact that the appellants very well knew that he would not be able to make any claim against all the three sons and would be able to claim only against the defendant Ramchandra who alone was the defendant.

       Admittedly, the respondent has not put to challenge the judgment and decree made by the lower Appellate Court in part i.e. to the extent of 1/5th share of Ramchandra and thus said part of the decree has become final.

       Specific Relief Act, 1963 - Section 20 Suit for specific performance of agreement to sell. Where suit property was joint family property held by defendant with his sons and wife therefore failure of plaintiff to make any sons of defendant a party to suit, disentitled him for grant of relief as prayed. In present suit for specific performance, plaintiff took plea that defendant executed agreement in dispute out of legal necessity, being karta of family. He stated that there was financial pressure on defendant from land development bank as the bank was pressurizing him for making repayment of the loan that was advanced. And that defendant in order to save suit land from being auctioned by land development bank, agreed to sell suit property to plaintiff and that was for benefit of family. Entire loan liability was of Rs. 14,300/-.

       However there is nothing in the agreement to show that though it was drafted by an Advocate with 15 clauses and 5 pages as to the amount of total loan liability with interest on the date of agreement of sale.

       It is evident that the amount of Rs. 5000/- was written in the agreement later on in hand writing as Rs. 7300/- and payment to be made in the bank again was written in hand writing as against the entire agreement which was typewritten. Further agreement shows that money was required for expenditure on agriculture and family maintenance but again the words ’for agreement of the loan of the bank’ were put in hand writing.

       It is thus clear that document of agreement does not support the case of the appellants that they knew about the entire loan liability of Rs. 14,300/- on the date of the agreement before agreeing to purchase the suit property for discharging the loan liability of the Rs. 14,300/-". Thus plea of legal necessity taken by plaintiff cannot be sustained. It would not constitute the ground to bind other members of family to the agreement executed by defendant unilaterally.

       .