An agreement by one coparcener of a joint Hindu family, not for legal necessity or for the benefit of the estate, is not binding on the other coparceners and cannot be enforced by a decree for specific performance against the executant coparcener.

Tarkeshwar Nath, J.

1. This appeal by defendant No. 2 arises out of a suit for specific performance of an agreement dated the 23rd December, 1947, executed by defendant No. 1.

2. The facts giving rise to this litigation are these: The plaintiff alleged that defendants 1 and 2 were joint and defendant No. 1 was the karta. They owned a house bearing holding No. 23 on the Krishna Prakash Road in the town of Gaya. They required money for - the treatment of defendant No. 2 and for other purposes and they intended to execute a permanent lease of that house. The plaintiff agreed to take the lease of the house on payment of Rs. 2000 as nazrana and Rs. 180 as annual rent.

On the 23rd December, 1947, defendant No. 1 executed an agreement, received Rs. 500 out of the amount of nazrana and stipulated to execute a formal lease in respect of the house within three months of that date. Defendant No. 2 was then a minor, but the transaction was for his benefit and he Was bound by that agreement. On the 6th January, 1948, defendant No. 1 took a further sum of Rs. 150 for paying Government revenue and cess and executed another agreement with similar terms. The plaintiff asked defendants Nos. 1 and 2 to execute the lease, but they avoided it which gave a cause of action for the present suit.

3. Defendant No. 2 contested the suit on grounds inter alia that he was not joint with defendant No. 1 and defendant No. 1 was not the karta. It appears that Raghubans Dubey and Harbans Dubey were brothers. Ramesh Chandra Duivedi, defendant No. 1, is the son of Raghubans Dubey, whereas Bageshwari Prasad Duivedi, defendant No. 2, is the son of Harbans Dubey. He alleged that Harbans Dubey separated from defendant No. 1 in 1944 and the two lived separately in two different quarters of Gaya. Harbans Dubey died in 1945, and since then defendant No. 2 lived under the guardianship of his mother who looked after his affairs. Defendant No. 1 and defendant No. 2 divided the ancestral properties by metes and bounds in 1948 by a registered deed of partition; He further averred that the house in question belonged originally to one Munni Lal Tewari, who made a gift of it along with other lands to his wife Thakure Kuar. Munni Lal Tewari built a temple and installed idols. After his death his widow executed a registered deed of danpatra dated the 20th January, 1872, in favour of the idols, and she dedicated the house in question to the idols for the performance of religious rites.

Nandan Dubey, brother of Thakure Kuar, was the Shebait, and the defendants were the descendants of Nandan Dubey. It was thus urged that the house did not belong to the defendants, and, on the other hand, it belonged to the idols. A further plea was taken that he was not ill; and there was no necessity at all for borrowing money and executing the agreements in question. The written statement of defendant No. 1. was rejected as it was filed after a long delay.

4. The Munsif held that defendants 1 and 2 were joint at the time of the agreements, the house in suit was not a debottar property, and the deeds of agreement were genuine, for consideration and legal necessity. He accordingly decreed the suit directing the defendants to execute the mukarrari patta by the 15th April, 1956, and the plaintiff was to deposit the balance of the nazrana by that date. On appeal by defendant No. 2 the Subordinate Judge affirmed these findings and dismissed the appeal. Defendant No. 2 has thus preferred this appeal.

5. It appeared on the first occasion when this appeal was heard that there was no proper consideration of the evidence and the circumstances regarding the question of legal necessity for the execution of the two agreements and thus the lower appellate Court was directed to deal properly with the evidence already on the record and record a finding as to whether the two agreements executed by defendant No. 1 were for legal necessity or benefit of the estate owned by the two defendants.

The learned Sub