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2008(1) LAW HERALD (P&H) 206
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Hemant Gupta
RSA No. 1537 of 1993
Padmawati
v.
Kulwant Rai
{Decided on 21/12/2007}
(A) Hindu Law--Joint Hindu Family Property--Co-parcenery property--Power of ‘Karta’--Alienation of property by manager of Co-parcenery property for legal necessity--Whether ‘Karta’ of Joint Hindu Family is competent to enter into an agreement for sale? YES--Held; Interalia-
(i) Permission for sale of a minor’s undivided share in the Joint Hindu Family Property is not required as the Karta is authorised to act on his behalf.
(ii) The Karta is authorised to sell the share of an adult member of the Joint Hindu Family.
(iii) Karta of a Hindu Undivided Family has a right to alienate the Joint Hindu Family Property for the benefit of the estate and/or legal necessity. Such alienation is binding on all the coparceners including the minors. (Para 16)
(B) Hindu Law--Karta--Joint Hindu Family--Coparcenery property--Responsibilities and obligations--Held, Interalia-
(i) A Karta of a Joint Hindu Family Property is not required to be appointed by the coparceners.
(ii) The oldest male member acts as a Karta.
(iii) Once, the sequence of devolution is proved, the property is deemed to be Joint Hindu Family Property in the hands of a male holder. (Para 18)
(C) Specific Relief Act, 1963--Joint Hindu Family Property--Suit for specific performance of agreement--Coparcenery property--Karta of Hindu undivided family has not mentioned in the agreement that he is executing the agreement on behalf of the Hindu undivided family--Same will not render the agreement invalid or ineffective--Held, Interalia Once, it is found that Karta of Hindu Undivided Family was competent to enter into an agreement, it is wholly immaterial that it was not recited in the agreement that the said agreement is on behalf of Hindu Undivided Family. (Para 20)
(D) Specific Relief Act, 1963--Suit for specific performance--Agreement to sell--Joint Hindu Family Property--‘Karta’ entering into an agreement--It not necessary for the plaintiff to plead and prove that the agreement entered upon by the Karta of a Joint Hindu Family was for legal necessity or for the benefit of the family--The Karta of a Joint Hindu Family has the right to sell the property subject to the limitations on his power to alienate--Document is binding. (Para 27)
(E) Specific Relief Act, 1963--Suit for specific performance--Plaintiffs have not only pleaded that they were ready and willing to perform his part of the contract, but also that he is ready and willing to perform his part of the contract-- there are no allegations of fraud, misrepresentation or collusion by any of the legal heirs with the plaintiffs--Ld. First appellate Court rightly granted decree of specific performance of the agreement of sale. (Para 35 & 47)
(F) Civil Procedure Code, 1908, Order 22, Rule 4--Legal representatives--The estate of deceased was sufficiently represented--It will bind not only the appellant but also the legal heirs, who have not been specifically impleaded as the party in the appeal. (Para 47)
Hemant Gupta, J.:- Defendant Nos. 2, 3 and 4 and some of the legal heirs of defendant No. 1 are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court granting decree of specific performance of the agreement of sale dated 12.6.1979.
2. It is alleged by the plaintiffs that firm of the plaintiff M/s Kanshi Nath and Sons is a tenant under defendant No.1 Amar Nath. The property in dispute has fallen to the share of defendant No.1 on the basis of partition effected amongst three brothers, namely, Amar Nath, Bal Kishan Dass (defendant No. 4) and Ram Nath by way of registered partition deed dated 11.6.1948. Amar Nath entered into an agreement of sale with respect to the property fallen to his share with the plaintiff and received a sum of Rs.5,000/- as an earnest money. The total sale consideration was fixed at Rs.46,000/-. The sale deed was to be executed on or before 31.12.1979 when the balance sale consideration of Rs.41,000/- was to be paid before the Sub Registrar.
3. It is pointed out that Bal Kishan Dass (defendant No.4) filed a false and frivolous suit on 6.10.1979 (Exhibit P.13) against Amar Nath and the present plaintiffs claiming prohibitory injunction restraining Amar Nath (defendant No.1) from transferring or managing any portion of the property in dispute. Amar Nath claimed his ownership with respect to the property in dispute. The said suit was decreed on 27.2.1980 (Exhibit P15/1) to the effect that defendant No.1 shall sell or transfer the proprietary rights in respect of the suit property as per the partition deed dated 11.6.1948. Bal Kishan filed another suit for declaration (Exhibit P.11) on 15.4.1980 claiming ownership over the suit property and also claimed a relief of permanent injunction restraining Amar Nath from selling or in any way disposing of any portion of the suit property. The said suit was dismissed on 28.1.1982 (Exhibit P.12). The learned trial Court in the aforesaid suit had granted an exparte injunction order on 18.4.1980 restraining Amar Nath from selling any portion of the suit property as mentioned in para No. 1 of the plaint till further orders.
4. It is also admitted fact that Amar Nath executed sale deed dated 27.11.1981 (Exhibit P.18) for a sale consideration of Rs.48,000/- in favour of defendant Nos. 2 and 3 i.e. sons of Bal Kishan defendant No.4 and brother of Amar Nath. After the aforesaid suit for declaration was dismissed on 28.1.1982, the plaintiff filed the present suit for specific performance on 24.3.1982. Amar Nath defendant No. 1 died on 30.10.1983 without filing the written statement. The written statement on behalf of the vendor was filed by his legal representatives alone.
5. The other undisputed fact is that writing dated 12.6.1979 though titled as the receipt, gives the detail terms and conditions of the sale and also the fact that the sale deed is to be executed on or before 31.12.1979. One of the witnesses of the aforesaid writing is Rajinder Mittal, Advocate and son of Amar Nath. After filing of the suit by defendant No.4 on 6.10.1979, Amar Nath communicated to plaintiffs on 24.10.1979 vide letter Exhibit P.10, after receipt of an exparte order issued by the Court, asking the plaintiffs to send the copies of certain documents to enable his son Shri Rajinder Mittal to prepare the reply and written statement and send directly to the Advocate engaged by the defendants. It is mentioned in the said letter that whole case of Bal Kishan is that he should not sell the portion of the property. Exhibit P.9 is another letter written by Amar Nath to plaintiff-Kulwant Rai. Exhibit P.3 dated 6.12.1979 is the letter written by the plaintiff Kulwant Rai to defendant Amar Nath. In the said letter, the plaintiffs have sought the original instrument of partition with its original plan and sought the presence of the defendant-Amar Nath in the Court. In the said letter, the plaintiff-Kulwant Rai has communicated that he was always ready
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