K. Venkatasubramaniam vs S. Arthanariswami Chettiar and Others

Sethuraman, J.—These are two appeals which arise out of a judgment of the learned Subordinate Judge of Salem in Original Suit No. 350 of 1973. In Appeal Suit No. 142 of 1976 the third Defendant in the suit is the Appellant while Appeal Suit No. 798 of 1979 has been filed by the first Defendant. The suit was filed by one Arthanariswami Chettiai for specific performance and damages against the Defendants of whom the first Defendant is the father. Defendants, 2and 3 the sons and the fourth Defendant is the son of the second Defendant. The suit concerns Door No. 384, Trichy MainRoad, Gugai, Salem. It is not in dispute that this property originally belonged to a joint family consisting of Defendants 1 to 4. There was an agreement between Defendants 1 and 2 on the one hand and the Plaintiff on the other, by which Defendants 1 and 2 agreed to convey this property for a sum of Rs. 1,20,000 in favour of the Plaintiff. This agreement was entered into on 1st May, 1972, under which a sum of Rs. 25,501 was paid as advance and the balance of Rs. 94,499 was payable within one month. The Plaintiff alleged that several payments were however made to the first Defendant from time to time in order to discharge certain antecedent debts for which alone this property was sold, leaving a balance of Rs. 3,385.17. There were extensions, of the time for conveyance from time to time and ultimately as the Defendants did not execute the sale deed, the Plaintiff came forward with the present suit for specific performance.

The first Defendant in his written statement admitted the execution of the suit agreement of sale on 1st May, 1972, but according to him, it was not on behalf of the third Defendant, who was a major even before the date of the said agreement. He pointed out that the Plaintiff was the son-in-law of his brother and that, he had full knowledge of the affairs in the family. As the Plaintiff asked the first Defendant to induce the third Defendant to join the execution of the sale deed, the agreement recited about the third Defendant also joining in the execution of the sale deed. It was stated that the third Defendant''s share was not intended to conveyed and that, if it was to be conveyed, Rs. 1,75,000 would be the consideration for the same.

The letter dated 11th May, 1972, sent by registered post by the third Defendant to Defendants 1 and 2 was relied on as showing that there was a division in the family of the Defendants and that the third Defendant''s share could not, therefore, have been conveyed by the first Defendant. Even the consideration as alleged to have been paid by the Plaintiff in the plaint was denied and it was stated that only a sum of Rs. 66,614.86 had been received and that the balance was due under the agreement. In the plaint, the Plaintiff had claimed damages and mesne profits and in the additional written statement filed by the first Defendant the liability for damages and mesne profits was denied.

In the written statement filed by the second Defendant it was stated that there was division between him and his father. even in the year 1965, that the whole agreement was brought about by misrepresentation and fraud and that the payment, as alleged in paragraph 9 of the plaint had not been made. The further contention was that there was no need for the alienation and that the earlier debts had not been incurred for any legal necessity or binding purpose.

The third Defendant, who is the Appellant now before us, in his written statement, contended that he had become divided from his father under the registered notice sent on 11th May, 1972, and that the father could not, therefore, bind him by any agreement. He challenged the alienation on the ground that the first Defendant had no right to alienate his share and that the purpose for which the alienations were sought to be made were not binding on him.

When the trial was in progress the third Defendant obtained the permission of the Court for filing an additional written statement by adding para 2 (A) to his original written statement contending that the severance in status had become effective by the notice issued'' on 6th June, 1964, on his behalf by his next friend and that the said "notice was followed by a suit filed in forma pauperis in Original Petition No. 260 of 1964. It was, therefore, claimed that he had gone out of the joint family and that there could be no alienation of his interest in the property.

There were reply statements filed by the Plaintiff traversing some of the allegations in the written statements original and additional.

The following issues were framed for trial:

(1) Is the price at Rs. 1,20,000 mentioned in the suit contract, fixed for the 2/3rd share of Defendants 1 and 2 only or for the entire property?

(2) Was the contract to sell dated 1st May, 1972, and

executed on behalf of the third Defendant also and whether, it is binding on third Defendant?

(3) What amount has been paid by the Plaintiff towards the, suit contract and what amount is still due?

(4) Is the Plaintiff entitled to specific performance and, if so on whose shares?

(5) Is the Plaintiff entitled to damages or mesne profits and, if so to what amount and against which Defendants?

(6) Were Defendants 2 and 3 divided from the first Defendant and, if so on what dates? and

(7) To what relief?

The learned Subordinate Judge, after considering the oral and documentary evidence, held that the agreement exhibit A-1, dated 1st May, 1972, had been executed on behalf of the third Defendant also, that the price had been fixed at Rs. 1,20,000 for the entire property and that Defendants 2 and 3 were not divided from the first Defendant at any time. He found that the Plaintiff would be entitled to a decree for specific performance in respect of the entire property. The payments made by the Plaintiff in discharge of debts were found to be binding on the second Defendant also. He held that the balance of consideration payable was Rs. 3,385-17. In the result, he decreed the suit as prayed for except as regards the claim for. future damages for which an opportunity was given to the Plaintiff to take separate proceedings. Time for execution of the sale deed by the Defendants was month. It is this decree that is challenged by Defendants 3 and 1 in the respective appeals.

We heard elaborate arguments from Mr. R. Krishnamurthi appearing for the third Defendant-Appellant and Mr. N.C. Raghavachari for the Plaintiff-first Respondent. In the other appeal, viz., Appeal Suit No. 798 of 1979 the contentions of Mr. R. Krishnaaaurthi were more on less adopted. All the contentions urged in both the appeals arc considered below.

There are three questions which arise for consideration in the appeals, viz.:

(1) Whether the thud Defendant became divided from the first Defendant either in 1964 or in 1972 prior to the date of the agreement, exhibit A-1?

(2) Even assuming that she third Defendant continued as a member of the joint family still whether the first Defendant could alienate the third Defendant''s share? and

(3) Whether, in any event, the Plaintiff would be en titled to specific performance of the execution of a sale deed by the third Defendant also?

We shall consider these questions seriatim.

From the evidence the division of the third Defendant is put on three different dates. While the third Defendant, himself put forward in his original written statement that he became divided on 11th May, 1972, subsequently in the amended written statement he put forward the case that he became divided from him father even in the year 1964. Thus, the date of division, even according to the third Defendant would be either in 1964 or in May, 1972. There is one further date, which is also material in this context and that is based on a notice issued on 12th June, 1972 under exhibit B-15. With reference to the notices dated, 11th May, 1972 and 12th June, 1972, it may be observed that both of them are posterior to exhibit A-1. If the third Defendant did not become divided from the first Defendant on the date of the agreement, viz., 1st May, 1972, then the issue of those notices would not affect the existence of Lbs joint family as on the date of the said agreement. If there was no partition as claimed by the third Defendant in the year 1964, then it would be clear that there was a joint family on 1st May, 1972, consisting of the first Defendant and the third Defendant, at any rate. It is in a way unnecessary for our present purpose to examine when the second Defendant became divided from his father. As he is a party to the agreement, exhibit, A-1, the agreement would, in any event be binding on him whether he was joint or divided. It is in this sense that it is not strictly necessary for our present purpose to go into the question of the division between the first Defendant and the second Defendant at any point of time earlier than exhibit A-1.

With reference to the alleged division in status of the year 1964, claimed by the third Defendant, it is now necessary to state a few more facts. Under exhibit B-67 there was a lawyer''s notice issued on 6th June, 1964, at the relevant time the third Defendant was a minor. He attained majority on 25th September, 1971. It is thus manifest that he was about 11 years old at the time when the said notice was given. Instructions to issue the above notice were given on his behalf by one A.S. Govindarajan, as his next friend. A.S. Govindarajan has given evidence as D.W.6. He is the sister''s husband of the third Defendant, and is thus the son-in-law of the first Defendant. In the said notice, which was addressed to Defendants 1 and 2, it was alleged that they all, including the minor, constituted a joint family which was possessed of immovable properties worth more than Rs. 70,000 and that the minor was entitled to l/3rd share in the said properties It referred to the family having ancestral business in cloth from the time of the grand-father of the minor, who died about 34 years earlier in or about 1939. There is a reference to the Will executed by the grand-father, who had married two wives. He had two sons by the first wife and two sons by his second wife. The two sons by the first wife viz., Palaniswamy Chetty and Rangaswamy Chetty were appointed as the guardian of the first Defendant who was then a minor and who attained the majority in or about 1942. There is a mention of a new business having been started in film distribution in the year 1947, and it is stated that debt had been contracted in the illegal and immoral business Started and conducted by the first Defendant. A decree had been trained in Original Suit No. 533 of 1961 on the file of the City Civil Court, Madras filed by a creditor and in execution of the said decree Execution Petition No. 8 of 1964 was filed for bringing to sa1e the property belonging to the family. It was claimed that this debt was not binding on the minor. The notice further stated that it was no longer safe and beneficial for the minor to continue in the joint family. The notice called upon the first Defendant to effect a division of the family properties in three equal shares and putt the next friend of the minor in possession of the same, failing which a suit was threatened to be filed.

At this stage it is enough to mention by reference to the recitals in exhibit B-67, dated 6th June, 1964 that it does not give expression to any unequivocal intention on the part of the minor to become divided from the joint family. It merely Calls upon the first Defendant to effect a division of the family properties into three equal shares and put the minor or his next friend in possession thereof. His failure to comply would it was notified, involve a litigation It is not possible to read exhibit B-of as bringing about any division in the family as such as there is no unequivocal intention to become divided.

This notice was followed by a suit. The plaint in the suit, is exhibited as exhibit B-44. Original Petition No. 270 of 1964 was filed for leave to institute the suit in forma pauperis. It repeats to some extent what has been stated in the notice exhibit B-67. It states that the debt, which had culminated in the decree in Original Suit No. 533 of 1961, was a bogus one and that the debts had been contracted in a business, which was illegal and immoral. It is stated that the business in film distribution was a risky and hazardous business and that in spite of the said notice the first Defendant was borrowing money for the said trade. It was added that considering the entire conduct of the first Defendant from 1947, it was, no longer safe or beneficial for the minor to continue as a member of the family and that the division of the family properties and an allotment of a separate share to the minor was most beneficial to him. The prayer was for division of the suit properties into three equal shares and for allotment of one such share to the Plaintiff. There was also a prayer for an injunction restraining the decree-holder from bringing the family properties to sale in pursuance of the decree in Original Suit No. 533 of 1961.

This suit did not go for trial. Notice to the Government Pleader had been given, as the suit was to be filed in forma paw paris. The case was set down for hearing on 11th September, 1954. However, even on 7th September, 1964, a memo was filed stating that the suit was not pressed. The proceedings thus came to a close by an order of dismissal of the suit, as not pressed. The result was that there was no adjudication of the questions whether the partition was beneficial to the minor. The point that now requires to be considered is the effect of the proceedings under exhibit B 41 on the minor''s status in the family.

The question whether a suit instituted on behalf of a minor effected a separation from the date of the plaint came to be considered by a Full Bench of this Court in Rangasayi v. Nagarathanamma (1934) ILR Mad.95 That was a case where a suit for partition was filed on behalf of an infant Plaintiff by his mother as the next friend. The first Defendant in the suit was an uncle of the Plaintiff and the second Defendant was the first Defendant''s son. The third Defendant was the Plaintiff''s half brother. The Plaintiff, his deceased father and the Defendants were members of a Hindu joint family. The father died on 16th May, 1929, and the suit was instituted on 29th October, 1929 on the allegation that the Defendants were misappropriating the Plaintiff''s share in the family properties and that they refused to deliver the Plaintiff''s share though demanded and turned him and his mother out of the family house in September, 1929. Unfortunately, the Plaintiff himself died on 21st March, 1931. His mother then applied to be brought on record as his legal representative. The learned Subordinate Judge passed an order directing the mother to be brought on record as legal representative and also directed an issue to be framed in the suit as to whether the suit was instituted in the interest of the minor and whether, had the minor survived, a decree for partition with effect from the date of the plaint ought to have been passed. It is this order which was challenged in revision by the Defendants in the said suit before this Court. Originally it came before Venkatasubba Rao and Railly JJ., who differed and referred the following two questions to a Full Bench:

I. Does a suit by a minor for partition abate, if he dies before the Court has found that partition is for his benefit? or

II. Is it open to his legal representative to proceed with the trial and obtain a decree on his showing that when the partition suit was instituted it was for the benefit of the minor?

The Full Bench consisted of Ramesam, Ananthakrsihna Ayyar and Cornish JJ. Each one of the Judges rendered separate opinions. The unanimous view of the Court was that the suit did not abate on the death of the minor and that it was open to the legal representative to proceed with the trial and obtain a decree on his or her showing that when the suit was instituted it was for the benefit of the minor. In the course of the judgment the reason behind the rule requiring the Court''s sanction for examining the question of the benefit to the minor and decreeing the suit only if such benefit was established was pointed out as follows by Ramesam J., at page 117:

But while a suit on behalf of a minor can be filed by any person as next friend, Courts have laid down that in the case of a suit for partition the suit ought not to be decreed unless it is for the benefit of the minor. The reason for such a limitation imposed by the Courts is not that there cannot be a partition between a minor and the other members of the family, but it is possible that the suit may not be for his benefit. When it is remembered that any person can sue on behalf of a minor as a next friend it is easy to imagine cases where the partition is not for his benefit. If the property is not being properly managed or if his rights are denied, it is obvious that he should have a partition vide Kamakshi Ammal v. Chidambara Reddi 3 M.H.C.R.94. But where the property is being well-managed and the minor is well-looked after there is no need of a suit for partition and it is possible that a meddle-some next friend without keeping in his mind the minor''s interest may file a suit it for partition on account of some misunderstanding of his own with the members of the family or some other motive. It is to avoid such a contingency that the rule has been observed by the Courts.

Again at page 122 the learned Judge proceeded to explain after discussing some of the earlier cases, the legal position as follows:

As I said, this is a rule conceived in the interests of minors. It does not mean that the exercise of the discretion is totally inoperative until the Court records its finding. In such a case it seems to me that the proper way of describing the situation is that the exercise of the option on behalf of the minor effects a severance conditional on the court finding that it was for the benefit of the minor.

The severance being effective from the date of the suit conditional on the Court being able to find that the suit when filed was for the benefit of the minor was repeated at page 137. Ananthakrishna Ayyar J., referred to the several cases decided by this Court as establishing the proposition that when once the Court came to the conclusion on the evidence that the suit was for the benefit of the minor, then the decree that was passed worked out a severance in status from the date of the plaint. Cornish J at page 151 has stated the legal position in the following words;

There can be no doubt upon the authorities that in the case of a minor suing for partition through his next friend severance of status is only accomplished, if the suit is decreed, but the severance will be deemed to have taken place from the date of the plaint.

He has also added:

In the case of a minor the assertion by suit of his right to separate is, as we have seen, an inchoate right until perfected by a decree of the Court.

The Supreme Court in Kakumanu Peda Subbayya and Another Vs. Kakumanu Akkamma and Another, approved this decision. In the Supreme Court''s case a suit for partition was filed on behalf of a minor by his maternal grand father as his next friend. The first Defendant was the father and the other Defendants were the other members of the family. In the plaint it was stated that there was ill-treatment of the mother of the Plaintiff. The District Munsif and the Subordinate Judge held that the ill-treatment has not been established. There were several alienations of the family properties and these alienations ware challenged. Sometime in January, 1943 the minor Plaintiff died and the suit was continued by his wife, who was brought on record as his legal representative. The trial Court dismissed (he suit and the Subordinate Judge alto agreed with the trial Court When them matter came before this Court, Satyanarayana Rao J. granted a preliminary decree for partition. The appeal to the Supreme Court was against this judgment. Two. contentions were urged before the Supreme Court. The first was that there was a concurrent finding by both the Courts that the suit was not instituted for the benefit of the minor and that the High Court had no power to reverse such a finding in second appeal and the second was that, in any event, as the minor Plaintiff had died before the suit was heard, the action abated. Their Lordships accepted the finding of this Court that the suit was instituted for the benefit of the minor. The question that remained for consideration was whether the suit abated, on the minor''s, death. The law on the point was examined in extenso and at page 1047, Venkatarama Ayyar J., who delivered the judgment for the Court observed as follows:

Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the Plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit.

At page 1048 is to be found the following passage which amplifies the legal position

When a court decides that a suit for partition is beneficial to the minor, it does not it self bring about a division in status. The court is not in the position of a super-guardian of a minor expressing on his behalf an intention to become divided. That intention is, in fact, expressed by some other person, and the function which the court exercises is merely to decide, whether that other person has acted in the best interest of the minor in expressing on his behalf an intention to become divided. The position will be clear when regard is had to what takes place when there is apparition outside court. In such a partition, when a branch consisting of a father and his minor son becomes divided from the others the father acts on behalf of the minor son as well, and the result of the partition is to effect a severance in status between the father and his minor son, on the one hand and the other coparceners on the other.... The minor has no doubt the right to have the partition set aside if it is shown to have been prejudicial to him, but if that is not established, the partition is binding on him. Vide Balkishan Das v. Ram Narain Sahu 30 I.A. 139. And even when the partition is set aside on the ground that it is unfair, the result will be not to annul the division in status created by the partition, but to entitle the minor to a re-allotment of the properties. It is immaterial that the minor was represented in the transaction not by a legal guardian, but by a relation.

It was further added at page 1049 as follows:

In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding, whether it is beneficial to the minor and a suit instituted on his behalf, if found to be beneficial, must be held to bring about a division in status.

At page 1049 it was pointed as follows:

When, therefore, the court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any [rule, special or peculiar to Hindu law, but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a decision of a court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before, but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status in the action of the next friend in instituting the suit, the decree of the court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor.

It was held that the suit did not abate, as the cause of action was not founded on any personal wrong and as a suit for partition was a suit for property. This decision was followed in Lakkireddi Chinna Venkata Reddi Vs. Lakkireddi Lakshmama,

In Nabisha v. Arumuga ILR (1974) Mad. 163, one Velayutham Pillai, who sold certain properties to the Plaintiff in that case was one of the three sons of one Muthiah Pillai, the three constituting a joint Hindu family. One of them was a minor in 1941 and a suit was filed on his behalf by his uncle as the next friend for partition. A preliminary decree for partition was made declaring that he was entitled to 1/3rd share in the family properties. After the passing of the preliminary decree, the minor attained majority. He filed an interlocutory application under Order XXXII, Rule 12 of the Code of Civil Procedure, electing to abandon the suit. Upon that, the Court dismissed the suit and the quondum minor died in April, 1945, leaving no widow or issue. Several years later the mother of the deceased filed an application for restoration of the suit to file. She contended that on the death of the quondam minor and another son of hers, their shares had devolved on her and that a final decree should be passed in respect of her 2/3rd share in the property. The other surviving son contested this application. In the meantime the surviving brother executed a sale deed of a part of the properties, and the purchaser brought a suit contending that there was no division in the joint family status between the three brothers when the suit was filed and that the surviving brother got all the joint family properties by survivorship. Thus, if the preliminary decree was effective to bring about a division in the joint family then the Plaintiff in the suit would only have l/3rd share in the properties. However, if consequence on the abandonment of the suit by the quondam minor after he attained majority the parties were members of a joint family then the position would be different. it was in this context that the question of the effect of the abandonment of the suit by the quondam miner was examined by a Bench consisting of Kailasam J., as has then was and N.S. Ramasamy J. At page 170 the learned Judges observed as follows:

It is settled law that division in status amongst members of a joint family, takes place immediately one coparcener declaring his unequivocal intention to separate and con municates the declaration to the other members. The very filing of a suit for partition would amount to such a declaration in this regard there is no distinction between a coparcener who is sui juris and a coparcener, who is minor and on whose behalf a next friend acts, except that such declaration is subject to the approval by Court.

After going into the fact that before passing the final decree it was found that the granting of a decree for partition would be beneficial to the minor. It was held at page 172:

That means the Court put its approval to the declaration made by the next friend on behalf of the minor-Plaintiff. Undoubtedly after the passing of the preliminary decree there was no joint family status between the three brothers and the division in status dates back to the date of plaint.

It was also held that there was no question of the preliminary decree becoming non est as a result of the suit being dismissed under Order XXXII, Rule 12 Code of Civil Procedure.

Thus the legal position is clear that when a suit for partition is filed on behalf of a minor by a guardian or his next friend there will be a division in status from the date of the plaint conditional on the Court holding that the severance in status was beneficial to the minor. If the Court holds that it is not for the benefit of the minor to become divided, then the suit is ineffective to bring about a separation. In such a case, the issue of notice by itself, does not effect a separation. The separation is only from the date of plaint, and is conditional or contingent on the Court deciding the severance as being beneficial to the minor. We would leave out those cases where the notice containing an intention to separate is not followed by a suit. There appears to be some anomaly of the notice in such a case being effective even without the sanction of the Court. Thus, a meddlesome next friend issuing a notice and not following it up with a suit is likely to jeopardise the position of a minor. We shall leave the discussion of this aspect there in the present case.

In the present case the suit was, not pressed. In the light of the legal position discussed above, if the Court had considered the partition as beneficial to the minor then there would be no difficulty. Bit that is not the position here.

In paragraph 13 of the plaint it was stated as follows:

Considering the entire conduct of the first Defendant from 1947 upto date, it is no longer possible for the minor Plaintiff to continue as a member of the family. A division of the family properties and an allotment of a separate share is most beneficial to the minor Plaintiff.

It is therefore just and necessary that the suit properties should be divided into three equal shares and the Plaintiff allotted one such share. It is also just and necessary that a permanent injunction be issued against the fifth Defendant restraining him from bringing the family properties to sale in execution of the decree in Original Suit No. 53.1 of 1961, City Civil Court, Madras.

We may examine why the next friend abandoned the suit. The evidence of D.W. 6 would be material in this context. He was the person. who was the next friend of the minor at the time of the institution of the said suit. He refers to the representation of the first Defendant stating that Canara Bank was prepared to give him some money, with which would discharge the decree debt. He, therefore, stated that he did not want to continue the partition suit further. In the cross-examination also he refers to the first Defendant asking him not to take any further steps about the suit and slates that believing his words he did not prosecute the suit. There is nothing in his evidence to show that the partition would, in any event, have been beneficial to the minor on that date. The suit was instituted only because the decree-holder was bringing the property for sale. The sale was averted by the first Defendant himself making the payment. D.W.6 was satisfied about the bonafides of the first Defendant. It is only because of his confidence in the first Defendant discharging the debt, so that the properties would not be sold in court auction that he did not continue the suit. Thus, even at that time the only circumstances which necessitated the partition suit was the threat to the family property. When this threat was averned by the first Defendant''s action, there was nothing on the basis of which the Court could have considered the severance in status of the minor with the rest of the family members as beneficial to him.

There was some discussion during the course of the arguments as to whether when once the suit had been disposed of, the question of the benefit of the minor could be gone into in subsequent proceedings.

This question, whether the benefit to the minor could be examined in any other proceedings than in a partition suit, was gone into in Ramaswamy v. Rayaruppa ILR (1962) Mad. 77. In that case the mother and natural guardian of the minor issued a notice to the minor''s grand-father unequivocally expressing an intention to separate from the joint family and demanding partition, and the grand-father instead of doing so, sold the suit property to the Plaintiff in that case purporting to act on behalf of the joint family consisting of himself and the minor for discharging certain family debts. The purchaser filed a suit for possession and the Court gave a decree only for the held share of the grand-father and dismissed the suit in respect of the minors half-share. On the question of severance in status by virtue of a notice issued on behalf of the minor coparcener and whether that was in the interest of the minor and beneficial to him. it was held that this question could be enquired into and decided in any proceeding other than in a suit for general partition and particularly in a suit for possession by an alienee At page 83 the legal position is suited in the following words:

It is now well-settled that under the Hindu law there is no distinction between a major coparcener and minor coparcener, so far as their rights in the joint family properties are concerned. A major coparcener can obtain by partition his share in the joint family properties. So too a minor coparcener. Where, however, a suit for partition is filed at the instance of a minor coparcener, the Court has to be satisfied whether it is in the interests of the minor that he should be divided or whether it would serve his interests better, if he continued to be a member of the coparcenary. That has nothing to do with the rights of the minor; the Court only decides what is best in his interests as he is incompetent to decide it for himself.

Thus, it is clear that this question can be examined even in other collateral proceedings. There is no reason why it should not be done now.

The problem that now arises for consideration is as to, the relevant date with reference to which the question of benefit to the minor has to be considered. We have already seen that a preliminary decree for partition based on the existence of the benefit to the minor does not become non-est as a result of the minor seeking to abandon the partition suit after attaining the majority. Thus the position is clear that as goon as the Court finds that the partition is for the benefit of the minor and proceeds to determine the matter accordingly, the subsequent conduct on the part of the minor after he attained majority would be of no relevance. Though in the present case the third Defendant, who was the minor, wants to stand by what was stated in the plaint exhibit B-44 his conduct is really not material. Therefore in the present case we have only to examine whether the suit as filed in 1964 for effecting a division would have been beneficial to the minor, and this question has to be decided In the light of the facts as they obtained at the time when the suit was filed. The Court''s jurisdiction to find out whether there was benefit to the minor would arise for consideration only with reference to the date of the suit, as the imprimatur of the sanction of the Court effects a severance from the date of the plaint. We have already seen that the only circumstance which brought about the suit was the threat to the family property, and once that threat was averted, there was no question of any benefit arising to the minor by persisting in the claim for partition. If the representation made to D.W.6 had been made to the Court to the effect that the first Defendant was willing to avert the sale of the property and that he was arranging for discharging the decree amount, the Court, in our opinion, would not have considered that the partition would have been in the interests of the minor. It thus follows that on the facts herein there was no question of severance in status between the third Defendant and the first Defendant in the year 1964.

It is in this context that Mr. N.C. Raghavachari, the learned Counsel for the Respondent, drew our attention to the fact that the third Defendant continued in the family as before notwithstanding the intervening ineffective legal proceedings. Though in the oral evidence let in on behalf of the Defendants it was stated that the third Defendant was being educated by a relation, the first Defendant has stated in the witness box as D.W.I that he was educating the third Defendant in Madras. The third Defendant himself as D W 3 has admitted that he used to go to the first Defendant during the vacation. Thus, there was no question of enmity or ill-feeling between the first and third Defendants during the period of his minority. Subsequently D.W. 3 would say that he was often quarrelling with his father about his wasteful ways and running into debts. Thus, until we come to exhibits B-36 and B-68,dated 11th May, 1972 and B-45 dated 12th June, 1972 there is absolutely nothing to show that there was any particular reason why the third Defendant would have felt it necessary to keep away from the family and why there should be a division effected between him and his father. On the facts, we held that there was no division in status prior to 1st May, 1972. It has already been seen that exhibits B-36 and B-68 and exhibit B-68 are posterior to the agreement,exhibitA-1 Any division in status energing from exhibits B-36 and B-68 on the one hand or exhibit B-45 on the other is not likely to be of any assistance in the determination of the point whether exhibit A-1 was properly executed by the first Defendant. The property would be the joint family property and the first Defendant would be the Kartha.

It has already been observed that it is not strictly necessary to go into the question of the second Defendant becoming divided by his father in the year 1966. However we may examine the facts on this point briefly, In this connection reference was made to exhibit B-43 dated 16th May, 1966, which is a registration copy of a sale deed executed by Defendants 1 to 3 in favour of one Siddharanga Chettiar and three others for a sum of Rs. 42,000. Even in the lower Court it was conceded by Mr. K. Parasaran (now the Solicitor-General of India), who appeared for the third Defendant that the statements contained in exhibit B-3were only nebulous and that for division in status to be effective, there must bean unequivocal declaration of intention. If exhibit B-43 is thus left out of account, then there is nothing to show that there was any severance in status between the second Defendant and his father in the year 1966 or earlier. It has, therefore to be held that there was no division in status between the first Defendant and the second Defendant. The second Defendant has given evidence as D.W. 2 and there is nothing in his deposition also to show that there was any partition between himself and his father.

In the view that we have taken, viz., that there was a joint family right upto the date of exhibit A-1, it is unnecessary to go into the question whether the suit in 1964 or the notices, viz., exhibits B-36, B-68and B-45 were merely sham and nominal transactions in any elaborate manner. It is enough to state that even though the earlier suit evidenced by exhibit 1-44 was motivated by an attempt at salvaging the property which was under a threat of sale in execution, it is not possible to subscribe to the view that the notice and the plaint could be termed to be sham. The expression sham would involve the concept that it was merely a pretence. It may be that the suit was filed as a paper suit. A pauper suit is not to be taken as shadow-boxing, unless there is some evidence to show it to be so. In this case, D. W. 6 could very well have apprehended that the interests of the minor would be jeopardised if the property was allowed to be sold and on that basis it is conceivable that he thought it in the interests of the minor to bring forward a suit. He was not the final arbiter. There is nothing to show that D.W. 6 had been set up by the first Defendant to bring forward such a suit. Mr. N.C. Raghavachariwas at pains to show that the first Defendant had never missed any opportunity of trying to make money by bringing a suit. He referred in this context to a litigation in respect of the partition which took place between the first Defendant and his brother, Damodara Chettiar. Damodara Chettiar was trying to sell a property that had fallen to his share in the partition between him self and his brother, the first Defendant under exhibit B-32 dated 23rd March, 1964. It was at that stage that Original Petition No. 283 of 1972 was filed in the Sub-Court, Salem. Exhibit A-51 is the certified copy of the plaint and it contains also the order in Original Petition No. 283 of 1972. That suit was filed on 25th January, 1972. It was not pressed and an endorsement to that effect was made on 7th February, 1973. It was admitted by the third Defendant that he received a sum of Rs. 15,000 from his uncle, Damodara Chetty for not pressing the suit. He admitted also that Damodara Chetty had executed sale deeds exhibits B-46 and B-47 and that in those documents has also along with his father and brother had attested and declared that they had no rights in the properties. Still he came forward with a suit which was ultimately withdrawn on receipt of Rs. 15,000. The contention of the learned Counsel was that the proceedings in 1964 was similarly motivated. For our present purpose it is unnecessary to go in detail into the bona fides of the litigation evidenced by exhibit A-51, as we have held that it did not effectuate a division in status. It is enough for our present purpose to state-that there is nothing to suggest lack of bona fides on the part of D.W. 6 in filing the partition suit in the year 1964, as the next friend of the third Defendant when he was a minor. in this view, there is no need to go into the cases cited for the proposition that a sham and nominal transaction is ineffective to bring about a division-in status. However, even though the proceedings in 1964 did not lack of bona fides, still as we have found that there was No. benefit to the minor by reason of those proceedings, those proceedings are ineffective to bring about any severance in status between the third Defendant and his father.

When once it was found that the property is the joint-family property of the father and his two sons, the question that next arise is whether the father could have entered into the agree meat for the sale of the property by virtue of his position as Kartha of the family. Exhibit A-1 was entered into by the first Defendant and the second Defendant. If really the first Defendant was-entering into the agreement as the Kartha of the joint family, then there was no need for the second Defendant also to have been made a party to the agreement. Further in exhibit A-I itself there is reference to the third Defendant being away from the station and his joining in the sale deed. Here also, if the first Defendant was exercising his powers as Kartha, then there was no need to get the signature of the third Defendant to the document. Thus, taking into account the terms of exhibit A-1 itself it is clear that it was not entered into by the first Defendant as the Kartha of the joint family.

Mr. N.C. Raghavachari vehemently contended that even where a person did not describe himself as the Kartha of the joint family in entering into a transaction, still he may be taken to have entered into the transaction in every capacity that he filled. His point was that the absence of the description of the first Defendant in the agreement as the Kartha is not conclusive as to the capacity in which he entered into the agreement. Mr. R. Krishnamurthy, the learned Counsel for the Appellant did not dispute this proposition in principle and, therefore, we do not think it necessary to examine the citations in this behalf. The real question relates to the capacity in which the first Defendant actually entered into the transaction. If it could be informed from the context that he had entered into the transaction as the Kartha, even though he has not described himself as such in the agreement, the agreement would be binding on the family. If however, he purported to enter into the agreement only on his own behalf, then the agreement would only bind him and not the joint family, as such. In the present case, we are of the view that the first Defendant entered into the agreement only in his individual capacity.

According to Mitakshara law as administered in this State a coparcener can sell, mortgage or otherwise alienate for value his undivided interest in coparcenary property without the consent of the other coparceners. See Mulla''s Hindu Law, fourteenth edition, paragraph 259, page 321. Therefore, there was nothing wrong or improbable in the first Defendant entering into the transaction of sale of his undivided interest in the coparcenary property. Similarly the second Defendant''s interest in the'' coparcenary property could also have been sold by him. Therefore it is not as if there is any irresistible inference to be drawn that the first Defendant was entering into the transaction only on behalf of the joint family. The circumstances that the entire property was contracted to be sold does not carry the matter further. If the parties misconceived their rights, the misconception cannot lead to the inference that the first Defendant entered into the agreement on behalf of the joint family. The inclusion of the second Defendant and the contemplation of the third Defendant joining the execution of the sale deed unmistakably show that each party was dealing with his own right.

Mr. R. Krishnamurthy, the learned Counsel for the Appellant urged that, if the family is taken to continue undivided and that even, if the first Defendant can be taken to have executed the agreement as the Kartha of the joint family, still the action of the first Defendant would be invalid and would not be binding on the third Defendant. In this connection he cited a decision of the Supreme Court in Balmukand Vs. Kamla Wati and Others, . In that case the Plaintiff, who filed the suit for specific performance had 17/20th share in certain lands in a village. The remaining 3/20th share belonging to a joint family of which Pindidas was the Manager. In order to consolidate his holding the Plaintiff desired to purchase the 3/20th share held by the joint family and approached pindidas who agreed to sell the said share at a particular rate which was higher than the market rate. As Pindidas failed to execute the sale deed, the Plaintiff filed the suit for specific performance impleading Pindidas and his brothers as Defendants. All the brothers of Pindidas were adults when the agreement to sell was entered into. They had not been consulted on the sale. They were ignorant about the assessed. They, therefore, resisted the Plaintiff''s suit for specific performance. The Court examined two questions in this connection viz., (i) whether there was benefit to the joint family and (ii) whether the action of Pindidas could bind the family. At page 1387 reference was made to a decision of the Full Bench of the Allahabad High Court in Jagatnarain v. Mathura Das ILR (1928) All 969 and after extracting a passage therefrom, their Lordships stated as follows (at page 1387):

We have no doubt that for a transaction to be regarded as one which is of benefit 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 necessarily depend upon the facts of each case. In the case before the Full Bench the two managers of the family found it difficult to aitaage the property at all with the result, apparently, that the family was incurring losses. To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the family. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found, that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence.... There is nothing to indicate that the position of the faintly vis-a-vis their share in the land had in any way been altered by reason of the circumstances that the remaining 17/20th share interest in the land came to be owned;: by the Plaintiff alone. Therefore, even upon the view taken in the Allahabad case the Plaintiff cannot hope to succeed in this suit.

On the question as to how far the alienation was binding on the family, reference was made to the decision of the Patna High Court in Sital Prasad Singh v. Ajablal Mander ILR (1939) Pat. 306, and after extracting a passage from the said judgment, the learned Judge observed as follows (at page 1388):

These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone, but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transactions or were consulted about it or even knew of the transaction.

Again in paragraph 9 in the same page it was observed as follows

Apart from that we have the fact that here the adult members of the family have stoutly resisted the Plaintiff''s claim for specific performance and we have no doubt that they would not have done so, if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the Plaintiff''s claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them.

The result was that the dismissal of the suit for specific performance was confirmed by the Supreme Court:

We shall consider the question of benefit to the family separately. But, for our present purposes, suffice it to say that the consultation with the third Defendant, who was an adult member of the family was absolutely essential and the absence of the consent, as laid down in the above decision, would negative the Plaintiff claim for specific performance as against the third Defendant.

It is at this stage necessary to consider the question whether the sale of this property was at all called for. The consideration as set out in the agreement was a sum of Rs. 1,20,000 out of which, a sum of Rs. 25,501 was payable and was actually paid as advance on lst May, 1972, and the balance of Rs. 94,499 was payable within one month from that date. According to the Plaintiff, he paid the first Defendant or on behalf of the first Defendant the following amounts on different dates:

Date

Description of Amount.

1.

(1)

22nd May, 1972

(2)

Rs. 1,735.00 in cash.

2.

22nd May, 1972

Rs. 14,l4l.33 paid to Canara Bank in discharge of the mortgage debt at the request of Defendants 1 and 2.

3.

24th May, 1972

Rs. 20,000-00 in cash.

4.

24th May, 1972

Rs. 30,000.00 to Sri Guruna-than at the request of the Defendants.

5.

25th May, 1972

Rs. 20,000.00 paid to Sri Gutu-nathan in discharge of the mortgage in his favour.

Along with the advance of Rs. 25,551 these payments totalled to Rs. 1,11,377.33. A sum of Rs. 5,237.50 was due to the Plaintiff''s wife, Srimathi Rajalakshmi Animal under promissory note executed by the first Defendant. After the adjustment of this sum of Rs. 5,237.50 there was a balance of Rs. 3,385.17, which was due under exhibit A-1. The Plaintiff stated that he was ready and willing to pay the said amount to the Defendant at. the time of the execution of the sale deed in his favour or as directed by the Court.

Exhibit A-64 is the mortgage deed in favour of Sri Guru-natha Mudahar executed by Defendants 1 to 3 for a sum of Rs. 30,000 on 1st December, 1967. Exhibit A-65 is another mortgage deed executed in favour of the same Sri Guranatha Mudaliar for a sum of Rs. 20,000 executed again. by Defendants 1 to 3 on 29th January, 1969. It is these amounts that are claimed to have been discharged by the Plaintiff at the request of the Defendants on 24th May, 1972. The mortgagee Sri Gurunathan has been examined as P.W.2. He stated in his deposition that it was the Plaintiff who paid him the amounts on 24th and 25th May, 1972. According to him Rs. 30,000 was paid on 24th May, 1972, Rs. 20,000 on the 25th May, 1972. The endorsements, exhibit''s A-35 and A 38 were said to have been made by the clerk of the Plaintiff and there was '' also a witness by name Kandasamy, who was his maternal uncle; The said Kandasamy is now no more. He stated that he did not take any further interest and he agreed to receive the principal as requested by the first Defendant. He did not however produce his account books stating that they were in Erode in connection with some other litigation. He stated also that exhibit B 32, the partition deed, and exhibit A-33 the lease deed, with the Canara Bank had been handed over 10 him at the time of the mortgage and that he gave them to the Plaintiff at the time of the discharge of the mortgage. The Courts below has accepted his testimony. We agree with it.

There was some criticism about the genuineness of the signature of Kandasamy, the Plaintiff''s clerk. It was stated that the said Kandasamy signed differently and that his signature in the other admitted documents would corroborate the Defendant''s stand. It is unnecessary to go into the question of genuineness of Kandasamy''s signature. Even assuming that no one else had signed the receipt, it would be enough if the mortgagee had signed the endorsement of receipt. There is no dispute about his having done so. There is no need for the attestation of the receipt.

The case of the Defendants is that the first Defendant done got the money in cash from the Plaintiff and paid it to P.W.2. We see no reason to accept this version of the Defendant. The Court below has believed the evidence of P.W.2 and we see no reason to come to a different conclusion on the appreciation of this evidence. Consequently the payment of Rs. 50,000 must be taken to have been made by the Plaintiff himself to P.W.2, the mortgagee. In support of the Defendants'' version, it was stated that the two documents which were with Sri. Gurunatha Mudaliar, viz., the partition deed and the lease deed executed by the Canara Bank were actually with the Defendants and it was stated that these documents were handed over to the Plaintiff for preparation of the sale deed. This version also has been believed by the Court below and we do not find any justification for coming to a different conclusion on the appreciation of the oral evidence on this aspect. These two mortgages have been marked as exhibits A-64 and A-65 and the endorsements as exhibits A-35 and A-38 appear therein. The possession or custody of these documents is consistent with the Plaintiff''s version that the amount was paid by him.

The next question that arises is whether these mortgages are any binding on the family. The documents have been executed by Defendants 1 to 3. The third Defendant was then a minor, but he would be bound by these transactions unless the debts were for immoral or illegal purposes. There is no proof to show that the debts were incurred for illegal or immoral purposes. It cannot therefore be gainsaid that the mortgage debt is a genuine debt, which is bound to be discharged by Defendants 1 to 3. The rest of the consideration now requires to be examined to see whether the third Defendant is bound by the same. We have already seen that the sum of Rs. 25,501 was paid as advance in cash on 1st May, 1972. There was also another sum of Rs. 20,000 paid on 24th May, 1972 in cash to the first Defendant. There is absolutely no evidence to show how these amounts were utilised, Though there is a vague suggestion that there were some debts to be discharged, still there is nothing to show that there were actually any debts due by the first Defendant or Defendants 1 to 3 to that extent. Necessity is not proved to this extent.

The sum of Rs. 1,735 paid on 22nd May, 1972 has gone in discharge of the arrears of municipal tax, and as the tax is levied on the property it is a binding purpose and, therefore Defendants 1 to 3 would be bound by the same. There was some suggestion that the sum of Rs. 1,735 was paid by the Plaintiff only as a volunteer. We do not consider him to be a volunteer, as by reason of the agreement he had acquired an interest in the property and he was interested in discharging the arrears of municipal tax as otherwise the property was liable to be brought to sale by the Municipality. Therefore, this would be a binding debt.

The sum of Rs. 14,141.33 was paid to the Canara Bank in discharge of the mortgage. The mortgage was originally executed in favour of one Mari Chettiar under exhibit A-5, dated 14th, April, 1970, for a sum of Rs. 25,000. It is this mortgage which was assigned in favour of Canara Bank. Though on the relevant date of this mortgage, the third defendant was a minor, he having attained majority only on 21st September, 1971, still these is nothing to show that this mortgage debt was not binding on the family. At any rate as far as the Plaintiff is concerned, his duty ended with showing that the consideration went in discharge of an antecedent debt. It was for the Defendants to show that this debt was not a binding debt. There is no evidence on this aspect.

The only other way in which the liability incurred by the family was sought to be questioned was that the first Defendant had entered into a new field of business, viz., film distribution, which was a risky and speculative business. This business was started in the year 1947. There is no evidence to show that there was any risk in a business like this. It may be that the film production is a risky venture. But as far as film distribution is concerned unless it is shown that he participated in the financing of film, he cannot be treated as having taken any risk by taking films for distribution and exhibiting them in the theatres. There is also no reference in the evidence in the profit or loss made ii this kind of business except a vague suggestion that it was, because - of this business that losses were incurred and liabilities had to be undertaken In the absence of any evidence disclosing the profit or loss of the yarn trade and film distribution we do not consider it possible to hold that the business of film distribution was a risky or speculative business or that it ran into some losses on account of which liabilities were incurred. The relevant account books etc., should be in the possession of the Defendants and they have not produced any such books, which would throw light on these aspects. In these circumstances, it is not possible to accept their case that the liabilities incurred on the mortgages or on other debts proved to have been discharged were not binding on the third Defendant. There can be no presumption that any liability incurred by the family is not binding on it, and it is for the person alleging that the debt is not for a binding purpose to prove it. There is no such proof in this case. The promissory note in favour of the Plaintiff''s wife, as in the absence of any evidence as mentioned above, is to be treated as an antecedent debt binding on the family and its discharge can, therefore, be taken as binding on the third Defendant.

The result of the examination of these individual items is that there is a discharge of binding debts only to the extent of Rs. 56,972.50. This sum is arrived at as follows:

Rs. 50,000.00 due to Gurunathan;

2 Rs. 1,73500 in relation to the Municipal tax, and

Rs. 5,237.50 due to Srimathi Rajalakshmi Ammal

Rs. 56,972.50

Even with reference to these amounts, the contention urged on behalf of the Appellant was that there was no pressure on the estate, which weald justify the sale of the property. The father of a joint, family may sell or mortgage the joint family property including the ''sons'' interest therein to discharge a debt contracted by him even for his own personal benefit and such Alienation binds the sons provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. See Mullas Hindu Law, fourteenth edition, page 374, paragraph 395. To validate an alienation so as to bind the son, there must be an antecedent debt, which should not have been incurred for an immoral or illegal purpose and the antecedent debt is one Which is in fact as well as in time independent of and not part of the transaction impeached. In the present case the debt to the extent of Rs. 56,972,50 would be antecedent debts binding on the. third Defendant. In any event the first Defendant could have alienated his share of the property as also the second Defendant. The third Defendant cannot validly object to what they could do on their own.

It was in this context that reference was made to the decision in K. V. Sundara Rama Iyer and Others Vs. Sathianathan and Others, . In that case it was stated that the manager of a trading family had wider powers than those of the manager of a non-trading family. But even in such a case of a trading family there must be benefit to the family. In the present case, there is no evidence to show that the sale of this property was the only means by which the debts could have teen discharged so as to bind the family. Even Assuming that the Karthe of the family had wider powers, still, it is necessary even for him to show that what was done was for the benefit of the family. In the same case the learned Judges have referred to a passage in Mayne''s Hindu Law wherein the existence of wider powers to a Manager of a trading family was referred to and then added that there is no deviation from the fundamental principle that what is done must be for the benefit or necessities of the family. The wider powers referred to are in the context of third party enquiries. Those who deal with the manager of such a family, who incurs debts, are not put on any enquiry as to whether the debts were incurred. for the benefit or necessities of the family so long as they were incidental to the family business. This decision cannot be taken as laying down the proposition that in all cases where the manager of a trading family alienated the properties then the alienation should be taken as binding on the family. To the extent of the antecedent debts, the alienation may be supportable. But. however, it does not follow that the alienation is valid even if the consideration which went in discharge of the family debts was only a minor part of the entire consideration.

On this aspect it is necessary to refer to a decision of the Supreme Court and a passage from Mulla''s Hindu Law referred to during the arguments.

In Radhakrishnadas Vs. Kaluram, a father and his son executed a sale for a sum of Rs. 50,000 of the interest in two villages belonging to the joint family. Subsequently the son filed a suit to set aside the sale on the ground that actually he was a minor when the sale deed was executed and that the legal necessity was only for Rs. 45,000 out of the total consideration of Rs. 50,000. It was held that the alienation was for legal necessity and was valid and binding, that the alienee was only required to establish legal necessity for the transaction and that it was not necessary for him to show that every bit of the consideration was applied for meeting family necessity. The transaction being for legal necessity, the father was considered to be competent to execute the sale deed binding on the family. As regards part of the consideration alone going to discharge of an antecedent debt, references was made by J.R. Mudholkar J., who delivered the judgment of the Supreme Court referred to two cases. In Sri Krishan Das v. Nathu Ram I.L.R (1926) All.169 (P.C.) the consideration for the alienation, was Rs. 3,500 the alinee was able to prove that there was legal necessity only to the extent of Rs. 300 and not for the balance. 7 The Privy Council held that what the alienee had to establish was the necessity for the transaction and that if he establishes it, en, he could not be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this rule was pointed out by the Privy Council as being that the alience could rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he entered into the management himself, which he could not do.

In Niamat Rai v. Dirt Dayal ILR (1927) Lah 597 (P.C.), the property was sold for a sum of Rs. 43,500 in order to satisfy pre-existing debts to the tune of Rs. 38,400. It was held that the discharge of antecedent debts to the tune of Rs. 38,000 out of Rs. 43,500 would be enough to support the sale.

In paragraph 245 at page 308 of Mulla''s Hindu Law, fourteenth edition, the several cases in which the sales were upheld unconditionally, though part of the sale consideration was not established to be for discharge of antecedent debt have been collected. The principle that is deducible from these decisions is that the mere fact that part of the price was not proved to be applied for the purpose of necessity would not invalidate the sale, as the purchaser was only expected to make enquiries about the existence of the antecedent debts and that he was not bound to see the application of the price. But the binding purpose must have formed a substantial part of the transaction.

48.. In the present case, as seen already the antecedent of debts amounted only to Rs. 56,972.50 There is absolutely no evidence of any other debt. There is also no evidence to show as to how the sum of Rs. 25,501, received as advance and Rs. 20,000 received on 25tb May, 1972, have been invested on applied. There is also nothing in the evidence to suggest that the parties conceived of the sale as an inevitable necessity. None of the cases referred to in the above passage in Mulct''s Hindu Law or in the decisions of the Supreme Court cited above, had upheld the sale as binding on the family even if the consideration which went in discharge of the sale consideration was only a fraction of the price. In this case the binding purpose is Rs. 56,972.50 and the total sale consideration is Rs. 1,20,000. It may be that in very many cases it would not be possible to alienate just the particular part of the family property in order to discharge the binding debts. It would, therefore, be necessary to sell the property for the available price and discharge substantially the antecedent debts out of the sale consideration, the balance being utilised for family purposes. But this is not such a case. The consideration of the antecedent debts being less than one-half of the actual consideration, the alienation cannot be supported as binding on the family, and will not bind the third Defendant.

The problem that now arises is whether the Plaintiff would be entitled to the relief of specific performance. On behalf of the Appellant it was submitted that the Plaintiff would not be entitled to specific performance in the present case, because the contract was said to be a contingent contract. According to the learned Counsel for the Appellant, the third Defendant was also expected to join in the transaction and the parties proceeded on the fundamental basis that the third Defendant would also execute a sale deed. When once it was found that the third Defendant would not join in the execution of the sale deed, it is stated that the whole suit for specific-performance would have to fail.

In Jainarain Ram Lundia v. Surajmull Sagarmul and Ors. (1949) F.C.R. 379 a partnership same into existence for promoting a private limited company for erecting and working a Sugar Mill in Bihar. The Sugar Mill starred with the capital of Rs. 8,00,000 consisting of 800 shares of Rs. 1,000 each. The share holders consisted two groups known as Pedrone Group and Bettia group. The Battia group had 350 shares, the other group having 450 shares There were difference of opinion and, therefore, there was an offer by the Bittia group to sell their holdings. This offer was accepted However, when it came to the question of the execution of the transfer deeds, the person who made the offer backed out matter was, therefore, brought before the Court for specific performance. One of the contentions was that where a promise was intended to be made by several persons jointly, if any one of such persons failed to enter into the agreement, there was no contract, and no liability was incurred by such of them as they had entered into the agreement. After referring to the relevant decisions, B.K. Mukherjee J. who spoke for the Federal Court observed at page 392 as follows:

When parties enter into an agreement on the clear understanding that some other person should be a party to it, obviously no perfected contract is possible so long as this other person does not join the agreement. This would be the position in law apart from any rule of equity.

The principle is clear that if an agreement is entered into on the basis that A, B and C would be parties to it and that ultimately if ''C'' backs out, then there is no concluded contract between the parties. One of the fundamental postulates behind the agreement viz., the participation by ''C'' in the contract would have disappeared and, therefore, the contract cannot be specifically enforced. The point to be considered here is whether the exhibit A-1 proceeds on the basis that the third Defendant was, also a party to the contract and that he, for the reasons of his own-did not agree to join the execution of the contract. The parties, to exhibit A-1 are the Plaintiff on the one side and Defendants 1 and 2 on the other. The Plaintiff being a near relation living in the same place cannot justifiably plead ignorance of the affairs of this family. It refers to the third Defendant being away from station and his joining the execution. Defendants 1 and 2 could not bind the third Defendant by any agreement. They were not constituted as his agents to agree to any such term. Thus, the third Defendant could not have been intended to be bound by any term, as such. Apparently the Plaintiff required the third Defendant also to join in the transaction and the agreement refers to the third Defendant being away and his signing in the sale den) the document is in Tamil and having read the passage in the document, we are not at all satisfied that the parties to exhibit A-1. conceived the third Defendant as an inevitable party to the transaction There is no provision in the agreement as to what would happen in case the third Defendant, for reasons of his own, did not join in the execution if it was intended to be the essential ingredient of the agreement, then one would have found some provision for the contingency of the third Defendant not actually joining the execution of the sale deed. There is no such term in the agreement. In these circumstances, we consider that the agreement before us cannot be considered to be a contingent agreement, in the sense that its validity was contingent on the third Defendant joining in the execution of the sale deed. The result is that Defendants 1 and 2 are the only persons, who entered into the agreement and they would be bound by it. The third Defendant is a complete stranger to the agreement.

Section 19 of the Specific Relief Act provides that specific performance of the contract may be enforced against either party thereto. It does not contemplate specific performance being had against a person who had not even entered into the contract. The fundamental concept behind the law of specific performance to enforce an agreement which was entered into between the parties Thus, the parties who entered into the agreement would be, bound by it and any failure to implement the agreement would involve the consequence of specific performance being enforced against the party, who failed to implement the agreement. The third Defendant is clearly outside the scope of the relief of specific performance.

In Baluswami Aiyarv. Lakshmana Aiyar ILR (1921) Mad. 605 a Full Bench of this Court was dealing with a case where the managing member of a joint Hindu family entered in to agreement to sell an item of family property. The contract was not proved to be binding on the other members. The question was could specific performance be decreed against him, and if so, on what terms? At page 620 Kumarasami Sastri J., who delivered the leading judgment, the other learned Judge concurring in it, observed as follows:

Where a person sues for specific performance of an agreement to convoy and simply implead the party bound to carry out the agreement there is no necessity to determine the question of the vendor''s title and the fact that the title which the purchaser may acquire might be defeasible by at third party is no ground for refusing specific performance, if the purchaser is willing to take such title as the vendor has. But where a party seeking specific performance seeks to bind the interests of persons not parties to the contract alleging grounds which under Hindu Law would bind their interests and enable the vendor to give a good title as against them and makes them parties, it is difficult to see how the question as to the right of the contracting party to convey any interest except his own can be avoided and a decree passed, the effect of which will merely be to create a multiplicity of suits.

At page 621 the learned Judge pointed out that there was no objection to the share of the vendor being ordered to be conveyed in cases where he could dispose of his shares, as he would then only be exercising his right without detriment to anybody fee.

Applying this principle in the present case the Plaintiff would not be entitled to specific performance as against the third Defendant. We have already examined the question as to how fat the third Defendant is bound by the agreement. We have found that he is not bound by it, in accordance with the principles of the decision in Balmukand v. Kamla Wati AIR 1941 S.C. 1385. and also in the light of the principles that a sale. would be binding only if the consideration substantially went in discharge of an antecedent liability. The specific performance could, therefore, be only as against Defendants 1 and 2 in respect of their shares in the property In the same Full Bench decision it has been held that the undivided interest of a coparcener could be alienated and that the alienee in such a case would stand in the shoes of the alienating coparcener so as to be in a position to file a suit for partition.

The learned Counsel for the Appellant relying on Section 12 of the Specific Relief Act contended that unless the plaintiff relinquished all claims to the performance of the remaining part of the contract and all rights to compensation, he could not enforce specific performance. The submission was that there was nothing in the pleadings to suggest that the Plaintiff had relinquished all claims to the performance of the remaining part of the contract and all rights to compensation. Section 12 (1) provides that the Court shall not direct the specific performance of the contract except as otherwise provide in the section. Section 12 (2) indicates that where a party to a contract is unable to perform the whole or part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation money, the Court may, at the suit of either party, direct specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. Sub-section (3) of Section 12 on which reliance was placed may now be reproduced:

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--

(a) forms a considerable part of the whole, though admitting of compensation in money, or

(b) does not admit of compensation-in money ; he is not entitled to obtain a decree for specific performance, but the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--

(i) in a case falling under Clause (a) pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under Clause (b), the consideration for the whole of the contract without nay abatement and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the Defendant.

It would be found that this provision applies only to a case where a party, who is unable to perform the whole or part of it, sues for specific performance. In the present case the party, who sues for specific performance, cannot be stated to. be unable to perform the whole or a part. In fact, he claims to have discharged practically the whole of the consideration and, there fore, very little remains to be done by him. To such a case Section 12 (3) cannot apply. The application of Section 12 (3) would arise only in a case where a person asking for specific performance is unable to perform a part of the obligation undertaken by him for some reason or other and the part left unperformed either forms a considerable part of the whole, though admitting of compensation in money or does not admit of compensation in money. This is not such a case. Therefore, the Appellant cannot rely on Section 12 (3) in relation to the claim for specific performance. The decision in Parthasarathy v. Venkata Kondia ILR (1965) Mad. 464 was cited. But this decision was rendered u/s 14, 15 and 16 of the. earlier Act. But Section 12 though it amalgamates these provisions has been brought in accordance with the recommendation of the Law Commission and we do not think it possible to apply the earlier ruling construing the provisions which were differently worded.

The learned Counsel for the Respondent submitted that the third Defendant would also be bound to discharge the antecedent debts incurred by his father on the application of the theory of pious obligation, and that, therefore, he would be bound by the agreement to sell the property. This contention mixes up to two concepts viz. one of pious obligation and the other of liability to execute a sale deed in a suit for specific performance. It may be that the third Defendant is bound to discharge the liabilities of his father so long as they were not incurred for immoral or illegal purposes. But, however that is not relevant in a suit for specific performance. We are concerned only with the question whether the third Defendant could be required to execute a sale deed in put suance of an agreement to which he was not a party. We have already seen that he cannot be so required.

One other decision which was cited is Sethu Parvathy Ammal Vs. Bajji K. Srinivasan Chettiar and Others, In that case an agreement was entered into by the Defendant on his own behalf and as guardian of the minor son. There was reference to the Defendant''s mother in the agreement. But it did not indicate what her interest in the property was. It was, however, found that she had only a charge on the property for her maintenance payable by the Defendant''s. The contention urged was that the contract could not be specifically enforced as it was intended that the Defendants. mother should also join it and that she did not do so. It was held on the construction of the agreement that the parties could not be said to have intended to be bound by the agreement only if the Defendant''s mother had also joined it and that the agreement could not be said to be incomplete or invalid. Specific performance of the contract was, therefore, granted. In all cases a question like this has to be considered only in the light of the intention of the parties. Of course, if the party intended that someone also was to sign the contract, then there could be no specific performance when the third party, who was ''expected to join the contract, refused to join. As already seen, in the present case there is nothing to show that the intention was that the third Defendant was considered to be a necessary party to the contract, so that his failure to join will invalidate the agreement and will not entitle the Plaintiff to specific performance.

It was contended on the basis of the endorsements in exhibit A-1 extending the time for performance, that, if as contended by the Plaintiff, the entire amount barring a sum of Rs. 3,000 and odd had been paid, there was no need to state that both parties were not ready to perform the agreement. It was suggested that the Plaintiff was not ready to perform his part of the contract and that is why extensions were given. Even assuming that there is some basis for this contention at the time of the endorsements, still as the Plaintiff has now asked for specific performance undertaking to pay the balance due, there is no justification for the submission that the Plaintiff is not in a position to perform his part of the contract and that he is not entitled to specific performance. Some attempt was made to show that some of the allegations made by the Plaintiff are not correct and that he has not come to the Court with clean hands. We are not satisfied on the facts that the conduct of the Plaintiff is such as to disentitle him to get specific performance. Thus, on a consideration of the entire evidence we arc satisfied that this is a case in which the Plaintiff could enforce the contract only as against Defendants 1 and 2. The decree of the Courts below will stand modified to this extent.

Appeal Suit No. 142 of 1976 is accordingly allowed in part and Appeal Suit No. 798 of 199 is dismissed. But in the circumstances there will be no order as to costs in both. The court fee payable in both the cases will be paid by the respective Appellants.