M.N. Shukla, J.
1. This is a defendants' appeal arising out of a suit for specific performance. The relief of specific performance was not granted by the Courts below but the suit was decreed for recovery of Rs. 8,000/- from the defendants Nos. 1 and 2 with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. Out of the above amount a sum of Rs. 5,000/- was awarded by way of damages for breach of contract and a sum of Rs. 3,000/- related to the refund of the earnest money.
2. The short facts of the case are: that the house in dispute in respect of whichan agreement for sale dated 3-4-1962 had been arrived at belonged to defendant No. 1 and the defendant No. 2 and his brothers. It is not disputed that a moiety share belonged to defendant No. 1 on the one hand and the remaining half belonged on the other hand, to defendant No. 2 and his three brothers. The agreement was to the effect that defendants Nos. 1 and 2 would sell the said house to the plaintiff for Rs. 10,000/-. A sum of Rs. 3,000/- was paid as earnest money and the balance was agreed to be paid at the time of execution of the sale deed. It was stipulated that the sale deed would be executed within three months from the date of agreement. In Jan. 1963 extension of time was granted at the request of defendants Nos. 1 and 2 and on their request a further sum of Rs. 2,600/- was advanced to them on 17-1-1963. It was alleged by the 'plaintiff that although he was ready and willing to perform his part of the agreement for the execution of the sale deed, yet the defendants postponed it on one pretext or the other and in breach of the terms of the agreement they executed a sale deed in favour of defendant No. 3, Ilam Chand for a sum of Rs. 15,000/- on 21-1-1963.
3. The defence of the defendants Nos. 1 and 2 was that plaintiff knew full-well that defendant No. 2 had three brothers and a mother, all of whom were co-sharers of the said house and that the plaintiff had taken upon himself the responsibility of persuading them also to agree to join the execution of the sale deed in his favour. It was contended that the agreement was subject to the condition that the plaintiff would make those co-sharers agree to execute the sale deed in his favour which he had failed to do. It was further pleaded that the defendants formed a joint Hindu family along with the brothers of defendant No. 2 and that the agreement was not for the benefit of the family and was not capable of being enforced in a Court of law.
4. The Courts below held that the defendant No. 3 was a bona fide purchaser without notice and consequently the sale deed in his favour was not illegal. Hence, no decree was passed against him. A decree was, however, passed against defendants Nos. 1 and 2 (the present appellants) for recovery of Rs. 8,000/- with pendente lite and future interest at the rate of Rs. 4/- per cent per annum. The decree was confirmed by the lower appellate Court.
5. Three points were urged before me on behalf of the appellants. The first and the most formidable contention of the appellants was that the terms of the agreement dated 3-4-1962 (Ext. 26) were reduced to writing, that it nowhere recited that Dhara Singh, defendant No. 2 was executing the agreement in his capacity as a Karta of the joint Hindu family, nor did it stipulate that defendant No. 2 took upon himself the responsibility of making his other brothers join in the execution of the sale deed and consequently the Courts below were in error in spelling out a new case and permitting evidence to be led to the effect that either Dhara Singh had promised to execute a sale deed in his capacity as the Karta of the joint family or that he had undertaken to persuade his brothers also to join in execution of the sale deed. It was further argued that since these conditions were not included in the terms of the agreement, the plaintiff had no right to insist on their fulfilment and to refuse to have the sale deed executed in the event of the defendants' inability to satisfy those conditions. It was vehemently urged that the agreement did not mention the capacity in which Dhara Singh, defendant No. 2, had executed the agreement to sell and oral evidence about it was barred, that Section 92 of the Indian Evidence Act did not permit any evidence to be led, to add to or vary the terms of an agreement reduced to writing, the Courts below acted illegally in permitting such evidence and in passing a decree for specific performance on the finding that the defendant had committed a breach of contract. The decree for damages to the extent of Rs. 5,000/- was also challenged by the appellants on the same ground, namely, that since there was no breach committed by the defendants, they were not entitled to a decree for damages.
6. As regards the objection founded on Section 92 of the Indian Evidence Act, it may first be noticed that the concurrent findings of the Courts below are that from the entire circumstances of the case and the evidence adduced by the parties it had been established that defendant No. 2, Dhara Singh had executed the agreement to sell in his capacity as the Karta of a joint Hindu family. The lower appellate Court has expressly observed in its judgment:--
'The agreement to sell was arrived at by defendant No. 2 in his capacity as the Karta of the joint family and the findingrecorded to that effect by the learned Additional Civil Judge has not been challenged before me in appeal.'
Thus, it is not open to the appellant now to suggest that he had signed the agreement to sell in his individual capacity. Moreover, even the bar of Section 92 of Indian Evidence Act would not operate in the present case. Admittedly Dhara Singh, defendant No. 2 was a party to the agreement and the oral evidence was led by the defendants only to show that he had appended his signature in his capacity as the Karta of the joint family. It was held by a Division Bench of this Court in Raghunath Tewari v. Budhoo Ram Tewari : AIR1932All112 that :--
'Where a lease is ostensibly taken in the name of one member of a joint Hindu family, Section 92 does not prevent the other members of the family from showing that It was a lease taken by the entire joint family, although the name of one only of its members was entered in the document.'
Thus, the finding of the Court below that Dhara Singh executed the agreement to sell in his capacity as Karta was correct and oral evidence could be led for proving the character of the execution, as the written agreement itself was silent.
7. The second submission on behalf of the appellants was that the purpose for which the agreement to sell had been executed was not one for which the Karta was competent to execute the agreement and thereby bind the other members of the family. The argument was that a transaction could not be said to be for the benefit of the estate of coparceners unless it was of a defensive character, calculated to protect the estate from some danger or destruction. The purpose for which the alienation was made in the instant case has been disclosed in para. 4 of the plaint. It avers that the defendants Nos. 1 and 2 found their property in village Karoda yielding no profits and, therefore, they had shifted to another village, namely, Kairana where they could acquire land at much cheaper rate and for more profit. And that was the reason why they wanted to sell their house in dispute at village Karoda and they had already sold their Bhumidhari land at Karoda. They had also constructed their house at Kairana and shifted to that place and as such the house at Karoda was not being used and yielded no profits. In these circumstances it was the plaintiffs case that the proposed bargain of sale ofthe house was for the benefit of the family. I am unable to accept the contention of the appellants that this alienation would not have been for the benefit of the family.
Formerly there was a conflict of opinion as to the meaning of the words 'for the benefit of the estate' which occurred in the judgment of the Judicial Committee in Hunooman Persaud v. Mst. Babooee's case ((1856) 6 Moo Ind App 393) (PC). One set of authorities laid down that a transaction could not be said to be for the benefit of the estate, unless it was of a defensive character, calculated to protect the estate from some threatened danger or destruction. See, Shankar Sahai v. Baichu Ram : AIR1925All333 ; Bhagwan Das v. Mahadeo Prasad (AIR 1923 All 298 (2)) and Inspector Singh v. Kharak Singh : AIR1928All403 . On the other hand, the other set of authorities expressed the view that for a transaction to be for the benefit of the estate, it was sufficient if it was such as a prudent person could have entered into with the knowledge that was available to him at the time of the transaction. In Jagat Narain v. Mathura Das : AIR1928All454 a Full Bench of Allahabad High Court interpreted the term 'benefit of the estate' as used with reference to transfers made by a Manager of a joint Hindu family. After examining a large number of authorities, including that in Hunooman Persaud Pandey v. Mst. Babooee Mundraj, (1856) 6 Moo Ind App 393 (PC); Sahu Ram Chandra v. Bhup Singh, ILR 89 All 437 : (AIR 1917 PC 61) and Palaniappa Chetty v. Devasikamony Pandara Sannadhi, 44 Ind App 147 : (AIR 1917 PC 33), it was held that the transactions justifiable on the principle of benefit to the estate were not limited to those which were of a defensive nature.
According to the Full Bench, if the transaction was such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, it would be for the benefit of the estate, though the degree of prudence required from the Manager would be a little greater than that expected of a sole owner of property. This controversy, however, now stands resolved by the decision of the Supreme Court in Balmukand v. Kamla Wati : 6SCR321 where it was observed that 'for a transaction to be regarded as of benefit to the family it need not be of a defensive character.' In each case the Court must be satisfied from the material before it that it was, in fact, such as con-ferred or was reasonably expected to confer benefit on the family at the time it was entered into. In view of the pleadings of the plaintiff to which I have already adverted, it is apparent that the intended alienation in the instant case was for the benefit of the family and, therefore, the agreement to sell was not invalid in law.
8. Notwithstanding these findings, however, I find it difficult to affirm the decree of the Court below, and this brings me to a consideration of the third and the last contention of the appellant. It was argued that the finding of the lower Courts that it was understood between the parties that Dhara Singh, defendant No. 2 would get the sale deed signed by his other brothers appeared to have been arrived at on a wrong principle of law. There is force in this submission. From the mere fact that Dhara Singh, defendant No. 2 executed the agreement in his capacity as Karta no obligation rested on him to compel the other brothers to join the execution of the sale deed. If the plaintiff had been willing to have the sale deed executed by defendants Nos. 1 and 2 alone and defendant No. 2 on his part had declined to execute the sale deed on the plea that his other brothers were not willing to join him, then in that case surely the appellants would have been guilty of breach of agreement. The lower appellate Court was in error in assuming on the basis of the oral evidence that defendant No. 2 had agreed to obtain the signatures of his other brothers also on the sale deed. There was no such stipulation at all in the agreement which was reduced to writing and oral evidence to add this fact to the terms of the agreement was clearly barred by Section 92 of the Indian Evidence Act. Hence, the Courts below should have proceeded on the footing that there was no such term in the I agreement to sell as cast any obligation 'either on defendant No. 2 to persuade his other brothers to loin in the execution of the sale deed or required the brothers themselves to participate in the execution of the sale deed. This is an error of law which has vitiated the judgment in appeal. On the other hand, there is unequivocal evidence to the effect that the plaintiff himself was adamant and was not willing to have the sale deed executed until the other brothers of defendant No. 2 also joined in the execution. Plaintiff Umrao Singh made a categorical statement to that effect. He also deposed thatDhara Singh had informed him that all his brothers were major and that he had asked Dhara Singh that the time limit fixed by the agreement be further extended but Dhara Singh in his turn assured him that he would execute the sale deed even if the tune limit had expired. This anxiety on the part of Umrao Singh for extension of further time limit for execution of the sale deed is proof positive of his desire that all his other brothers should also join in the execution of the sale deed. Apart from this, in the plaint also it has been specifically averred that defendant No. 2 had represented that all his brothers would execute the sale deed. From this it becomes abundantly clear that the correct factual position is represented by Umrao Singh's admission in his deposition that he was not willing to have the sale deed executed by Dhara Singh alone and without the participation of his other brothers. This was plainly in violation of the agreement to sell which did not stipulate any such condition and if the defendants failed to satisfy the desire of the plaintiff in this regard, they cannot be held to have committed breach of the agreement and the Courts below erred in passing a decree for damages and refund of the earnest money. In view of my finding that the plaintiff himself was responsible for the breach of the agreement to sell, he was not entitled either to damages or refund of the earnest money and the Courts below acted illegally in passing such decrees.
9. In the result, this appeal succeeds. The decree of the Court below is set aside but in the peculiar circumstances of the case, I direct the parties to bear their own costs throughout.