1. This is a plaintiff's appeal from the dismissal of his suit for specificperformance of a contract for the sale of 3/20th share of land in certainfields situate in Mauza Faizpur in Batala in the State of Punjab. He hadinstituted the suit in the court of Sub-Judge, First Class, Batala, whodismissed it in its entirety. Upon appeal the High Court of Punjab, whileupholding the dismissal of the plaintiff's claim for specific performance,modified the decree of the trial court in regard to one matter. By thatmodification the High Court ordered the defendants to repay to the plaintiffthe earnest money which he had paid when the contract of sale was entered intoby him with Pindidas. It may be mentioned that Pindidas died during thependency of the appeal before the High Court and his legal representativeswere, therefore, substituted in his place. Aggrieved by the dismissal of hisclaim for specific performance the plaintiff has come up to this Court by acertificate granted by the High Court, under Art. 133 of the Constitution.
2. The relevant facts are these :
The plaintiff owned 79/120th share in Kasra Nos. 494,495, 496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi of 1943-43,situate at Mauza Faizpur of Batala. On October 1, 1943 he purchased 23/120thshare in this land belonging to one Devisahai. He thus became owner of 17/20thshare in this land. The remaining 3/20th share belongs to the joint Hindufamily of which Pindidas was the Manager and his brother Haveliram, Khemchandand Satyapal were the members. According to the plaintiff he paid Rs. 175 permarla for the land which he purchased from Devisahai. In order to consolidatehis holding, the plaintiff desired to acquire the 3/20th share held by thejoint family of Pindidas and his brothers. He, therefore, approached Pindidasin the matter and the latter agreed to sell the 3/20th share belonging to thefamily at the rate of Rs. 250 per marla. The contract in this regard wasentered into on October 1, 1945 with Pindidas and Rs. 100 were paid to him asearnest money. As the manager of the family failed to execute the sale deed inhis favour, the plaintiff instituted the suit and made Pindidas and hisbrothers defendants thereto.
3. The suit was resisted by all the defendants. Pindidas admitted havingentered into a contract of sale of some land to the plaintiff on October 1,1945 and of having received Rs. 100 as earnest money. According to him,however, that contract pertained not to the land in suit but to another pieceof land. He further pleaded that he had no right to enter into a contract onbehalf of his brothers who are defendants 2 to 4 to the suit and are nowrespondents 13 to 15 before us. The defendants 2 to 4 denied the existence ofany contract and further pleaded that even if Pindidas was proved to be theKarta of the joint family and had agreed to sell the land in suit thetransaction was not binding upon them because the sale was not for the benefitof the family not was there any necessity for that sale. The courts below havefound in the plaintiff's favour that Pindidas did enter into a contract withhim for the sale of 3/20th share of the family land in suit and received Rs.100 as earnest money. But they held that the contract was not binding on thefamily because there was no necessity for the sale and the contract was not forthe benefit the family.
4. It is not disputed before us by Mr. N. C. Chatterjee for the plaintiffthat the defendants are persons in affluent circumstances and that there was nonecessity for the sale. But according to him, the intended sale was beneficialto the family inasmuch as it was not a practical proposition for the defendantsto make any use of their fractional share in the land and, therefore, byconverting it into money the family stood to gain. He further pointed out thatwhereas the value of the land at the date of transaction was Rs. 175 per marlaonly the plaintiff had agreed under the contract to purchase it at Rs. 250 permarla the family stood to make an additional gain by the transaction. Thesubstance of his argument was that the Manager of a joint Hindu family haspower to sell the family property not only for a defensive purpose but alsowhere circumstances are such that a prudent owner of property would alienate itfor a consideration which he regards to be adequate.
5. In support of the contention he has placed reliance on three decisions.The first of these is Jagatnarain v. Mathura Das I.L.R. 50 All. 969. That isa decision of the Full Bench of that High Court in which the meaning andimplication of the term 'benefit of the estate' is used withreference to transfers made by a Manager of a joint Hindu family wasconsidered. The learned Judges examined a large number of decisions, includingthat in Hanooman Persaud Pandey v. Babooee Munraj Koonweree (1856) 6 Moo. I.A.393; Sahu Ram Chandra v. Bhup Singh I.L.R. 39 All. 437 and Palaniappa Chettyv. Sreemath Daivasikamony Pandra Sannadhi (44 I.A. 147) and held thattransactions justifiable on the principle of benefit to the estate are notlimited to those which are of a defensive nature. According to the High Courtif the transaction is such as a prudent owner of property would, in the lightof circumstances which were within his knowledge at that time, have enteredinto, though the degree of prudence required from the manager would be a littlegreater than that expected of a sole owner of property. The facts of that caseas found by the High Court were :
'......... the adult managers of the family foundit very inconvenient and to the prejudice of the family's interests to retainproperty, 18 or 19 miles away from Bijnor, to the management of which neitherof them could possibly give proper attention, that they considered it to theadvantage of the estate to sell that property and purchase other property moreaccessible with the proceeds, that they did in fact sell that property on veryadvantageous terms, that there is nothing to indicate that the transactionwould not have reached a profitable conclusion.......' (p. 979).
6. We have no doubt that for a transaction to be regarded as one which is ofbenefit to the family it need not necessarily be only of a defensive character.But what transaction would be for the benefit of the family must necessarilydepend upon the facts of each case. In the case before the Full Bench the twomanagers of the family found it difficult to manage the property at all withthe result, apparently, that the family was incurring losses. To sell suchproperty, and that too on advantageous terms, and to invest the sale proceedsin a profitable way could certainly be regarded as beneficial to the family. Inthe present case there is unfortunately nothing in the plaint to suggest thatPindidas agreed to sell the property because he found it difficult to manage itor because he found that the family was incurring loss by retaining theproperty. Nor again is there anything to suggest that the ideal was to investthe sale proceeds in some profitable manner. Indeed there are no allegations inthe plaint to the effect that the sale was being contemplated by anyconsiderations of prudence. All that is said is that the fraction of thefamily's share of the land owned by the family bore a very small proportion tothe land which the plaintiff held at the date of the transaction. But that wasindeed the case even before the purchase by the plaintiff of the 23/120th sharefrom Devisahai. There is nothing to indicate that the position of the familyvis-a-vis their share in the land in any way been altered by reason of thecircumstance that the remaining 17/20th interest in the land came to be ownedby the plaintiff alone. Therefore, even upon the view taken in the Allahabadcase the plaintiff cannot hope to succeed in this suit.
7. The next case is Sital Prasad Singh v. Ajablal Mander I.L.R. 18 Pat.306. That was a case in which one of the questions which arose forconsideration was the power of a manager to alienate part of the joint familyproperty for the acquisition of new property. In that case also the testapplied to the transaction entered into by a manager of a joint Hindu familywas held to be the same, that is, whether the transaction was one into which aprudent owner would enter in the ordinary course of management in order tobenefit the estate. Following the view taken in the Allahabad case the learnedJudges also held that the expression 'benefit of the estate' has awider meaning than mere compelling necessity and is not limited to transactionsof a purely defensive nature. In the course of his judgment Harries C.J.observed at p. 311 :
'....... the karta of a joint Hindu family beingmerely a manager and not an absolute owner, the Hindu law has, like othersystems of law, placed certain limitations upon his power to alienate propertywhich is owned by the joint family. The Hindu law-givers, however, could nothave intended to impose any such restriction on his power as would virtuallydisqualify him from doing anything to improve the conditions of the family. Theonly reasonable limitation which can be imposed on the karta is that he mustact with prudence, and prudence implies caution as well as foresight andexcludes hasty, reckless and arbitrary conduct.'
8. After observing that the transaction entered into by a manager should notbe of a speculative nature the learned Chief Justice observed :
'In exceptional circumstances, however, the courtwill uphold the alienation of a part of the joint family property by a kartafor the acquisition of new property as, for example, where all the adultmembers of the joint family with the knowledge available to them and possessingall the necessary information about the means and requirements of the familyare convinced that the proposed purchase of the new property is for the benefitof the estate.'
9. These observations make it clear that where adult members are inexistence the judgment is to be not that of the manager of the family alone butthat of all the adult members of the family, including the manager. In the casebefore us all the brothers of Pindidas were adults when the contract wasentered into. There is no suggestion that they agreed to the transaction orwere consulted about it or even knew of the transaction. Even, therefore, if wehold that the view expressed by the learned Chief Justice is right it does nothelp the plaintiff because the facts here are different from those contemplatedby the learned Chief Justice. The other Judge who was a party to that decision,Manoharlal J., took more or less the same view.
10. The third case relied on is In the matter of A. T. Vasudevan & Ors.,minors A.I.R. 1949 Mad. 260. There is single Judge of the High Court heldthat the manager of joint Hindu family is competent to alienate joint familyproperty if it is clearly beneficial to the estate even though there is nolegal necessity justifying the transaction. This view was expressed whiledealing with an application under clause 17 of Letters Patent by oneThiruvengada Mudaliar for being appointed guardian of the joint family propertybelonging to, inter alia, to his five minor sons and for sanction of the saleof that property as being beneficial to the interests of the minor sons. Thepetitioner who was Karta of the family had, besides the five minor sons, twoadult sons, his wife and unmarried daughter who had rights of maintenance. Itwas thus in connection with his application that the learned Judge consideredthe matter and from that point of view the decision is distinguishable. However,it is a fact that the learned Judge has clearly expressed the opinion that themanager has power to sell joint family property if he is satisfied that thetransaction would be for the benefit of the family. In coming to thisconclusion he has based himself mainly upon the view taken by Venkata Subba RaoJ., in Sellappa v. Suppan A.I.R. 1937 Mad. 496. That was a case in which thequestion which arose for consideration was whether borrowing money on themortgage of joint family property for the purchase of a house could be held tobe binding on the family because the transaction was of benefit to the family.While holding that a transaction to be for the benefit of the family need notbe of a defensive character the learned Judges, upon the evidence before them,held that this particular transaction was not established by evidence to be onefor the benefit of the family.
11. Thus, as we have already stated, that for a transaction to be regardedas of benefit to the family it need not be of defensive character so as to bebinding on the family. In each case the court must be satisfied from thematerial before it that it was in fact such as conferred or was reasonablyexpected to confer benefit on the family at the time it was entered into. Wehave pointed out that there is not even an allegation in the plaint that thetransaction was such as was regarded as beneficial to the family when it wasentered into by Pindidas. Apart from that we have the fact that here the adultmembers of the family have stoutly resisted the plaintiff's claim for specificperformance and we have no doubt that they would not have done so if they weresatisfied that the transaction was of benefit to the family. It may be possiblethat the land which was intended to be sold had risen in value by the time thepresent suit was instituted and that is why the other members of the family arecontesting the plaintiff's claim. Apart from that the adult members of thefamily are well within their rights in saying that no part of the family propertycould be parted with or agreed to be parted with by the manager on the groundof alleged benefit to the family without consulting them. Here, as alreadystated, there is no allegation of any such consultation.
12. In these circumstances we must hold that the courts below were right indismissing the suit for specific performance. We may add that granting specificperformance is always in the discretion of the court and in our view in a caseof this kind the court would be exercising its discretion right by refusingspecific performance.
13. No doubt Pindidas himself was bound by the contract which he has enteredinto and the plaintiff would have been entitled to the benefit of s. 15 of theSpecific Relief Act which runs thus :
'Where a party to a contract is unable to performthe whole of his part of it, and the part which must be left unperformed formsa considerable portion of the whole, or does not admit of compensation inmoney, he is not entitled to obtain a decree for specific performance. But thecourt may, at the suit of the other party, direct the party in default toperform specifically so much of his part of the contract as he can perform,provided that the plaintiff relinquishes all claim to further performance, allright to compensation either for the deficiency, or for the loss or damagesustained by him through the default of the defendant.'
14. However, in the case before us there is no claim no behalf of theplaintiff that he is willing to play the entire consideration for obtaining adecree against the interest of Pindidas alone in the property. In the resultthe appeal fails and is dismissed with costs.
15. Appeal dismissed.