Judgement

B. N. MISRA, J.:- Plaintiffs 1, 2 and 3 wives of brothers Puranmal, Matrumal and Prabhudayal respectively, have preferred this appeal against the judgment and decree of the learned 4th. Additional subordinate Judge, Cuttack dismissing their suit for specific performance of contract. Choudhury Sibanava Das is defendant No. 1. The late Durgabati Devi was his first wife and defendants 2 to 4 are his sons and defendants 5 to 7 are his daughters through the late Durgabati. Defendant No. 8, Satyabhama Devi is the second wife of defendant No. 1 and defendants 9 to 11 are the adult sons and defendants 12 to 15 are the minor sons of defendant No. 1 through Satyabhama. The properties described in Schedules A and B appended to the plaint form the subject matter of dispute between the parties. Schedule A comprises Ac. 0.063 decimals of land together with a portion of the house appertaining to plot No. 422 of C.S. Khata No. 163 and Schedule B comprises Ac. 0.041-5 links of land together with a portion of the same house appertaining to plot No. 422/1 of C.S. Khata No. 163. The house and the lands are situated at Manikghose bazar in the city of Cuttack.

2. The plaintiffs case may be briefly stated. The defendants constitute a joint family of which defendant No. 1 is the Karta. The properties mentioned in Schedules A and B of the plaint were originally ancestral joint family properties of defendant No. 1 and his co-sharers. In partition suits No. 69 of 1924 and No. 144 of 1927 of the Court of the Subordinate Judge, Cuttack between the co-sharers, the A schedule properties along with other properties fell to the share of the late Choudhury Padmanava Das, father of defendant No. 1. Padmanava got his name mutated in the landlord s Shirasta and Municipal office and remained in separate possession thereof. After his death defendant No. 1 became the owner in possession of the said property as Karta of the family. In the aforesaid partition suits the B schedule property along with other properties fell to the share of Choudhury Mohadev Das, Choudhury Brajabandhu Das and Choudhury Dukhishyam Das who amicably partitioned the same amongst themselves, Brajabandhu taking Ac. 0.19 decimals and the remaining two Ac. 0.16 decimals each. On 9-4-1938 Brajabandhu sold his share of Ac. 0.19 decimals to one Lambodar Misra who had two sons, Upendranath and Debendranath, both of whom after the death of their father divided the said Ac. 0.19 decimals of land equally between them. According to the plaintiffs, Choudhury Dukhishyam Das and Choudhury Mohadev Das proposed to sell their shares of Ac. 0.16 decimals each in the B schedule property to defendant No. 1 who purchased the same with his own funds benami in the name of his first wife, the late Durgabati Devi, by two sale-deeds dated 15-12-1940 and 12-12-1941. The aforesaid Debendranath Misra, one of the sons of Lambodar Misra, proposed to sell his share of Ac. 0.9 decimals and 5 links in B schedule property to defendant No. 1 who purchased the same on 22-11-1967 with his own funds benami in the name of his second wife, Satyabhama, defendant No. 8. Since after the purchases noted above, defendant No. 1 became the owner in possession of the entire Ac. 0.41 decimals and 5 links of land comprising B schedule property together with the dilapidated house thereon. The further case of the plaintiffs is that defendant No. 1 could not make any repairs to the old double-storeyed building standing on a portion of A schedule property and as a result the building became so dilapidated that a huge sum of money was required for repairs. Defendant No. 1 who was then residing in village with his family did not think it profitable or beneficial to spend such a huge sum for repairs of the building. Accordingly he proposed to dispose of the same and utilise the money in extending his residential house at village Bhingarpur and also to run the family business as a profitable concern. Puranmal, husband of plaintiff No. 1, came