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Judgment
Honourable Mr. Justice Shailesh Kumar Sinha
This appeal is directed against the judgement and decree dated 30th November, 1987 passed in Title Suit No. 272 of 1982 filed by the respondent no.1 (Life Insurance Corporation) seeking relief of specific performance of contract in respect of the suit property. The appellant contested the suit. The suit decreed, hence the present appeal is preferred by one of the defendants of the suit namely the appellant.
The case of the plaintiff-respondent no.1 is that the father of the appellant, Late Jugal Kishore Daga as well as the respondent nos. 2 & 3 and husband of the deceased, respondent no.4, entered into an agreement for sale after long correspondence between the year 1974-81 in respect of the suit property detailed in Schedule ''A'' which was in occupation of the respondent no. 1 as tenant on monthly rent of Rs. 375/-. The said Late Jugal Kishore Daga however for some reason or the other could not execute the sale deed on the agreed consideration money of Rs. 2,35,050/-, and as such, the plaintiff filed the above suit for specific performance of contract. The suit was not contested by any of the defendants except the appellant. The case of the appellant was that the suit property belonged to four persons namely, Jugal Kishore Daga (father of the appellant), Mohan Lal Daga (appellant), Kamla Daga (Minor daughter of Jugal Kishore Daga) and Raj Kumar Daga (Minor son of Jugal Kishore Daga) as per the decree of Title Partition Suit No. 193 of 1966 (Exhibit-4) vide schedule ''2''. As such although the property remained joint and no partition took place between them, all the above four persons had title over the property to the extent of one fourth. Therefore, the father Late Jugal Kishore Daga could not have entered into the agreement for sale of the suit property himself and on behalf of his sons and daughter including the appellant even though there was no partition amongst them, besides the agreement to sell the suit property was not in the benefit of the family inasmuch as there was no concluded agreement for sale. Accordingly, the suit was sought to be dismissed.
The trial Court upon considering the oral and the documentary evidences which included the various correspondences between Late Jugal Kishore Daga and the Life Insurance Corporation (respondent no.1) found that the family of Late Jugal Kishore Daga with the appellant Mohan Lal Daga and his two minor children got Schedule ''A'' property in terms of the aforesaid partition suit. The fact not in dispute that the family was joint and the Late Jugal Kishore Daga entered into an agreement for sale through various exchange of letters with the Life Insurance Corporation. It was further found that the agreement having been concluded, as such, Late Jugal Kishore Daga in law was required to execute the sale deed in favour of the plaintiff. The trial Court found that although Jugal Kishore Daga was competent to enter into the agreement, however the appellant also had his consent in the said agreement as he himself deposited the Xerox copy of the relevant documents in connection with the agreement to the plaintiff which would appear from the letter dated 20th March, 1982 Exhibit- 2(Y) written by the plaintiff to Jugal Kishore Daga. The Court having found that although the agreement for sale was concluded the same having not been given effect the plaintiff''s suit for specific performance of contract to be performed on the part of the defendants was decreed and on failure the same it would be completed through the process of law vide judgement and decree under the appeal. It is an admitted position that pursuant to the decree under the appeal a deed of sale was executed through the process of law in favour of the plaintiff-respondent no.1 in respect of the suit property and is in possession of the same.
No one has appeared on behalf of the respondent nos. 2 & 3. Respondent No. 4 died during the pendency of the appeal and his heirs are on record as respondent nos. 2 & 3.
Learned counsel for the appellant submits that the schedule ''A'' property was exclusive property of all the aforesaid four persons i.e. each of the persons entitled to have one fourth share in the suit property. It is further contended that even though there was no partition, but Late Jugal Kishore Daga although being father could not have assumed himself to be the Karta of the family, and as such, he had no exclusive right to deal with the property in question. Besides, it was submitted that so called agreement to sell the property in favour of the Life Insurance Corporation was not concluded, and as such, on an unconcluded agreement the plaintiff-Life Insurance Corporation could not have derived any benefit. This apart, the agreement to sell the suit property was not in the benefit of the family, and as such, on this count as well the agreement for sale if at all arrived by Late Jugal Kishore Daga could not be given effect. Learned counsel for the appellant reiterated that consent of all title holders over the schedule ''A'' property was a must before dealing with the property in any manner and refers to the letter dated 07.08.1981, Exhibit-2(P) written by the Life Insurance Corporation to Jugal Kishore Daga for executing the sale deed along with all his three legal heirs. The Court below did not consider the relevant documents as contained in Exhibits 2/G, 2/H, 2/I, 2/P, 2/T and 2/Y which would show that the agreement was not concluded nor the Life Insurance Corporation was prepared to accept the execution of sale deed exclusively by late Jugal Kishore Daga.
Mr. Rajiv Ranjan Prasad, learned counsel for the plaintiff-respondent no.1 briefly submitted that it is not in dispute that schedule ''A'' property of the suit was allotted in favour of Jugal Kishore Daga and his heirs including the appellant, Mohan Lal Daga as per schedule ''2'' of partition suit vide Title Suit No. 199 of 1966 (Exhibit-4). The identity of the land and the title over the same is not in dispute. It was submitted that in view of the admitted position that the family of Late Jugal Kishore Daga including his son, Mohan Lal Daga remained joint. Late Jugal Kishore Daga being the father who admittedly used to handle the affairs of the family as the Karta was within his right to enter into the agreement for sale of the suit property which was arrived after long correspondences between the years 1974 to 1981. The appellant, Mohan Lal Daga all along remained associated in connection with correspondences between his father and the Life Insurance Corporation regarding the agreement for sale. It was submitted that the appellant, Mohan Lal Daga could not challenge the authority of Karta for the action which was for the benefit of the family. It is further submitted that it would appear from the fact that the house in question was occupied by the L.I.C. on a monthly rental of Rs. 375/- only and the property was agreed to be sold on consideration of Rs. 2,35,050/- which would fetch much higher monetary income to the family than what they were receiving as rental. As such, the agreement for sale of the suit property was for the benefit of the family. As regards the agreement for sale, learned counsel submits that during the long correspondences every aspect of the matter was discussed between the parties and finally after agreeing on the consideration money, the agreement for sale was finally concluded and then communicated to the Life Insurance Corporation as per letter dated 15.04.1981 written by Late Jugal Kishore Daga vide Exhibit-2/M. It is submitted that after the agreement for sale was concluded Late Jugal Kishore Daga got served a legal notice dated 17th March, 1982 (Exhibit-2/T) stating therein to the effect that Jugal Kishore Daga is the Karta of his family and is ready to execute the sale deed. However, before the sale deed could had been executed and Jugal Kishore Daga died. The heirs of Jugal Kishore Daga did not execute the sale deed, and as such, the plaintiff-Life Insurance Corporation had no option but to file the aforesaid suit which on contest was rightly decreed. The consideration money was of Rs. 2,35,050/-(Rupees two lacs thirty five thousand and fifty) deposited in the execution case filed by the plaintiff in the court below to get the sale deed executed with respect to suit property through Court.
The point for determination in appeal is as to whether Late Jugal Kishore Daga was the Karta of the family and competent to enter into an agreement for sale of the suit property and the agreement was a concluded or not.
Upon considering the rival submissions of the parties, it would appear that the dispute between the parties is on very narrow compass. The case of the plaintiff is that the family was joint and Late Jugal Kishore Daga was the Karta of the family who had entered into an agreement for sale with the Life Insurance Corporation after long correspondence for the benefit of the family in the knowledge and with the consent of the appellant. The admitted position between the parties is that the property remained joint, there was no partition and in absence of any case of the appellant that the said Late Jugal Kishore Daga entered into the agreement for sale of the suit property for some ulterior purposes, the bonafide and authority of Late Jugal Kishore Daga cannot be held to be without authority in law. It is well settled in law that a Hindu family in absence of contrary is presumed to be joint and the eldest member of the family in absence of any allegation of misdeeds or acting against the interest of family or doing anything for immoral purposes, the action taken by eldest member as the Karta of the family cannot be held as illegal. In the present case the admitted position is that Late Jugal Kishore Daga was the father of the appellant as also two minor children who was dealing with the property of the family being its head he had all the authority in law to deal with the property including the agreement for sale of the property in question in absence of any partition amongst the members of the family. As regards the agreement as to whether it was concluded or not it cannot be disputed that the agreement was arrived at not in one day rather it is arrived after chain of correspondences between long periods of several years. During such period the appellant did not put his objection to the Life Insurance Corporation that no such agreement be entered into for sale of the suit property nor he took any legal recourse if he was not agreeable. No chit of paper by way of evidence whatsoever was produced on behalf of the appellant to counter the evidence of the plaintiff. From perusal of the letters dated 02.05.1974, 17.09.1975, 22.09.1977, 22.09.1978, 19.10.1978, 01.01.1979, 08.01.1979, 24.01.1979, 02.03.1979, 19.02.1980, 12.03.1980, 11.04.1980, 04.06.1980, 29.08.1980, 27.09.1980, 03.11.1980, 04.11.1980, 24.12.1980, 10.01.1981, 21.01.1981, 15.04.1981, 23.07.1981, 07.08.1981, 13.01.1982, 20.03.1982 and the letter sent by special messenger as contained in Exhibits-1, 2, 2(a), 2(z), 2(b), 2(C), 2(d), 2(E), 2(F), 2(Z1), 2(G), 2(U), 2(I), 2(Z3), 2(W), 2(J), 2(X), 2(K), 2(D), 2(N), 2(M), 2(B), 2(P), 2(R), 2(Y) & 2(P) respectively it would appear that the parties agreed to sale and purchase the suit property. The consideration money was also settled between the parties and the final decision was communicated by Jugal Kishore Daga as per the letter dated 15.04.1981 vide Exhibit-2/M. As such, nothing more remained for concluding the agreement. The only further action required in law was to execute the sale deed by Jugal Kishore Daga in favour of the Life Insurance Corporation. The same for one reason or the other could be done neither during his life time nor by his legal heirs including the appellant after his death, and as such, the Life Insurance Corporation had taken the recourse of law and filed the suit in question. The trial court considering the respective cases of the parties as also the documents as referred to the above in detailed came to the conclusion that Late Jugal Kishore Daga was the Karta of the family, the agreement for sale was in the benefit of the family taking into consideration the monthly rental what the family was getting from the suit property and what it would be getting after receiving as sale price of Rs. 2,35,050/-. Moreso, in absence of any counter evidence produced by the appellant, the decree under the appeal cannot be held to be illegal or unjustified in law.
In the result, for the reasons and the discussions as above, I do not find any merit in this appeal. The same is accordingly dismissed with cost of Rs. 5,000/- (Rupees Five Thousand) as the plaintiff Life Insurance Corporation was subjected to unwarranted litigation for long years.