1. This appeal by the plaintiff is directed against the judgment and decree dated 21-1-1985, in O.S.No.199/79 on the file of the Subordinate Judge, Narasaraopet insofar as it is against him.
2. The facts in brief, are as follows :
(i) The 1st defendant is the father of the 2nd defendant and husband of 3rd defendant and they constituted Hindu Joint Family. The Defendants 4 and 5 are the younger brothers of the plaintiff-appellant. The plaint ''B'' schedule property belongs to the family of the Defendants 1 to3. Dl had a pre-deceased son by name Veera Shankara Rao, The plaint ''A'' schedule landed properly comprising three S.Nos. i.e., S.No.3/1 extent Acs.6.91 cents, S.No-48/1 extent Acs.3.51 cents and S.No.48/2 extent 1 acre (total extents Acs. 11.51 cents), is shown as forming part of plaint ''B'' schedule property belonging to the family of Defendants 1 to 3 and late Veera Shankara Rao, the pre-deceased son of Dl. On 7-6-1978, the 1 st defendant executed an agreement of sale in favour of the plaintiff with respect to the plaint ''A'' schedule property agreeing to sell the same at the rate of Rs.6,000/- per acre and also received a sum of Rs. 10,000/- as earnest money. Ex.A1 is the said original agreement of sale, dated 10-6-1978 executed by Dl. It is agreed under this document that the balance of the sale consideration to be paid within 45 days and obtain a registered sale deed. As the 1st defendant failed to execute the registered sale deed, as per the terms of the contract, the plaintiff got issued a registered notice, dated 20-7-1978 to the 1st defendant through his advocate. Ex.A2 is the office copy of the said notice. The 1st defendant issued a reply (Ex.A4), dated 19-8-1978 to that notice of the plaintiff stating that he will not execute the registered sale deed, as his son the 2nd defendant did not agree for the said sale and that he is ready to refund the earnest amount. The 1st defendant also enclosed the draft for Rs.10,000/- obtained in the name of the plaintiff by way of refund of the earnest amount. On 5-8-1978 on coming to know about the agreement of sale Ex.A1 executed by D1 in favour of the plaintiff, the 2nd defendant got issued a notice, Ex.A5, to the plaintiff and D1 stating that there was no legal necessity for D1 to sell the property which is joint family property and that it is not binding with respect to his share. Under Ex.A6, dated 15-8-1978, the plaintiff got issued a reply to the 2nd defendant contending that the property agreed to be sold under Ex,A1 is the self-acquired property of Defendant No.l and as such, Dl has got full power to dispose of the property and that even if it is assumed to be the joint family property, it is binding on the 2nd defendant as it was sold by D1 as manager of the joint family. Thereafter, the plaintiff filed the suit on 24-10-1979 for specific performance of the agreement of sale Ex.A 1, originally, against Dl and D2. The plaintiff also prayed that if for any reason this primary relief of specific performance by both the defendants could not be granted directly there should be a general partition of the family property of the defendants and in such partition, plaint ''A'' schedule property may be allotted to Dl directing him to execute a regular sale deed in favour of plaintiff working out the equities in the partition between Dl and D2. Subsequently, as per orders in I.A.No.1402/81, dated 14-1-81, the 3rd defendant was added as a party as she happened to be the mother of Veera Shankara Rao. Subsequently, as per order in I.A.No.3078/84, dated 27-4-84, the Defendants 4 and 5 who were the younger brothers of the plaintiff were impleaded as parties.
(ii) All the defendants resisted the claim of the plaintiff and filed separate written statements. The 1st defendant admits the suit agreement of sale Ex.Al and also receipt of the amount of Rs.10,000/-as earnest money, but he pleads that he executed the agreement of sale feeling confident that his son the 2nd defendant would agree for the said sale and execute the registered sale deed. He also pleaded that the agreement of sale has become impossible for performance on account of the refusal by the 2nd defendant. Dl further pleaded that the suit for partition of ''B'' schedule property and allotment of ''A'' schedule property to Dl is not maintainable. The 2nd defendant pleaded in his written statement that the plaint ''A'' schedule properties are not the self-acquired properties of the Defendant No. 1, that there was no necessity for the 1st defendant to sell the plaint ''A'' schedule property as Kartha of the family; that the agreement of sale does not bind the 2nd defendant, and the plaint ''B'' schedule property is the co-parcenary property of D1 and D2 and that plaintiff is not entitled for partition of plaint ''B'' schedule property. The agreement of sale does not create any title in the property, but only enables to sue for specific performance and that the plaintiff is entitled only to the interest of his vendor in the property agreed to be sold. The 3rd defendant filed her written statement contending that the joint family of the defendants consisted of Dl to D3 and late Veera Shankara Rao, who was the 2nd son of D1 and D3 and subsequent to the death of Veera Shankara Rao, D3 is entitled to l/3rd share of Veera Shankara Rao in the family properties and that D3 is not aware of the agreement of sale. The plaintiff has not acquired any right or title in the plaint ''A'' schedule property and as such, plaintiff has no right for partition of the family properties, and the equities cannot be worked out- It is alleged in the written statement filed on behalf of the 4th defendant which was adopted by 5th defendant that plaintiff and D1 to D5 are entitled to equal shares in the property under the agreement of sale, dated, 7-6-1978 and the agreement of sale was taken nominally in the name of the plaintiff and the amount paid under the suit agreement belongs to the plaintiff, D4 and D5 and as such, the suit properties have to be partitioned among the plaintiff, D4 and D5.
3. On a consideration of the said pleadings, the following issues were settled for trial :
1. Whether the suit agreement dated 7-6-1978 is binding on the second defendant and third defendant ?
2. Whether the agreement of sale became incapable of specific performance on grounds stated by the first defendant ?
3. Whether the plaintiff is entitled to ask for partition of ''B'' schedule properties and for allotment of ''A'' schedule properties to the first defendant ?
4. Whether the first defendants wife is a necessary party to the suit and if so whether the suit is bad for non-joinder of necessary parties ?
5. To what relief? Additional issue framed on 26-10-1984 :
1. Whether the suit agreement of sale was taken nominally in the name of the plaintiff?
Subsequently, another additional issue was framed :
"Whether the plaint ''A'' schedule property is the self-acquired and separate property of the first defendant ?
4. To substantiate their respective contentions, the plaintiff got himself examined as PW1 and marked Exs.A1 to A6. On behalf of defendants, DWs. 1 to 6 were examined and Exs.Bl to B11 were marked. The 1st defendant got himself examined as DW1 and 2nd defendant as DW4, DW2 is the attestor of the suit agreement of sale and DW3 is the village Assistant, who is said to be the person present at the time of Ex.A1, Memo was filed on behalf of D4 and D5 reserving their right to take separate proceedings for the relief against the plaintiff. The learned Subordinate Judge held on additional issue framed on 26-10-1984 that the Defendants 4 and 5 are at liberty to take separate proceedings against the plaintiff relating to the issue whether the suit agreement of sale was taken nominally in the name of the plaintiff.
5. As the wife of the 1st defendant has been added as party to the proceedings as 3rd defendant, the learned Subordinate Judge held on issue No. 3 that the suit is not bad for non-joinder of Defendant No.3. On additional issue whether the plaint ''A'' schedule property is self-acquired and separate property of Defendant No. 1, the learned Subordinate Judge on an elaborate consideration of oral and documentary evidence on record, held that the 1st defendant acquired ''A'' schedule lands from and out of the income of the ancestral property and as such, they are the joint family properties of the Defendants 1,2 and late Veera Shankara Rao and that they are not the self-acquired property of Dl. On issue No.l whether the suit agreement, dated 7-6-78 is binding on Defendants 2 and 3, the learned Subordinate Judge held that the 3rd defendant is entitled to l/3rd share of her deceased son Veera Shankara Rao in the plaint ''A'' ''schedule property and that the suit agreement of sate Ex.Al executed by Defendant No.l alone is not binding on the Defendants 2 and 3 and the plaintiff is not entitled for specific performance of agreement of sale relating to the shares of Defendants 2 and 3 and that the plaintiff is entitled to the specific performance of agreement of sale with respect to the share of the 1st defendant alone. On issue No.2, the learned Subordinate Judge held that the agreement of sale relating to the share of defendant No.l in the plaint ''A'' schedule properly is capable of specific performance even though D2 and D3 are not parties to the agreement of sale as the suit property is capable of being divided and that the plaintiff can enforce the agreement of sale in respect of the share of the 1st defendant. On issue No.3 the learned Subordinate Judge held that the plaintiff is not entitled to ask for partition of ''B'' schedule property and allotment of ''A'' schedule property to 1st defendant. On issue No.5 which relates to the relief to be granted to the plaintiff, the learned Subordinate Judge granted the following reliefs :
(a) The suit is decreed for specific performance of contract of sale, dated 7-6-78 relating to the share of the 1 st defendant alone in plaint ''A'', schedule property directing the 1st defendant to execute and register the sale deed in favour of the plaintiff after receiving the balance of sale consideration relating to his share in the plaint ''A'' schedule property; failure to execute the sale deed by the 1 st defendant gives liberty to the plaintiff to obtain the sale deed through Court and time for deposit of balance of sale consideration is one month and for execution of sale deed by Dl is one month thereafter.
(b) A preliminary decree is also passed or partition of plaint ''A'' schedule properties into three equal shares and allotment of one such share to the 1st defendant and as the plaintiff is entitled to the share of the 1st defendant in the plaint ''A'' schedule, the share of 1st defendant shall be allotted to the plaintiff,
(c) The plaintiff is entitled to proportionate costs recoverable from the 1st defendant alone.
(d) The relief for partition of ''B'' schedule property into three equal shares and allotment of ''A'' schedule property to 1st defendant is dismissed.
(e) The Defendants 4 and 5 are at liberty to take separate proceedings against the plaintiff relating to the issue whether the suit agreement of sale was taken nominally in the name of the plaintiff
Defendant Nos.2 to 5 shall bear their own costs.
The plaintiff has come up with this appeal against the said judgment and decree insofar as it is against him. The Defendants 1 to 3 have not preferred any cross-objections or filed any separate appeal against the said judgment and decree.
6. Heard the learned Counsel on either side and perused the record.
7. The learned Counsel for the appellant submits that plaint ''A'' schedule property which is agreed to be sold under Ex.Al, is the self-acquired property of the 1st defendant. Even if it is conceded that it is the joint family property of Di to D3 and late Veem Shankara Rao, the 1st defendant as Kartha or manager of the said joint family, sold the same for family necessity and for benefit of the estate and as such, it is binding on the non-executing members of the joint family and therefore, the finding of the trial Judge that the suit agreement of sale is not binding on the shares of D2 and D3 is wholly unsustainable. The learned Counsel for the appellant also contends that the trial Judge ought to have ordered for general partition of ''B'' schedule joint family property and working out equities the entire ''A'' schedule property ought to have been allotted to the share of 1st defendant and the 1st defendant should have been directed to execute a registered sale deed with respect to the entire ''A'' schedule property in favour of the plaintiff. The learned Junior Counsel for 2nd respondent submitted his arguments in support of the impugned judgment.
8. Having heard both the Counsel, the points that arises for consideration arc as follows :
(1) Whether plaint ''A'' schedule property which was agreed to be sold under Ex,Al by the 1st defendant is the self-acquired property of the 1st defendant as contended by the appellant/plaintiff?
OR
Whether the same is the joint family property of the Defendants 1 to 3 and late Veera Shankara Rao as contended by the Defendant Nos. 1 to 3 ?
(2) Whether the suit agreement of sale Ex.Bl is binding on the shares of Defendants 2 and 3 ?
(3) Whether the appellant-plaintiff is entitled for general partition of the joint family properties of Defendants 1 to 3 i.e., plaint ''B'' schedule property and for allotment of ''A'' schedule property to the share of the 1st defendant and that Dl should be directed to execute a registered sale deed with respect to the entire ''A'' schedule property in favour of the plaintiff?
9. The relationship between the., Defendants 1 to 3 is not disputed. The 1st defendant is the father of 2nd defendant and husband of 3rd defendant. Dl also had a son by name Veem Shankara Rao and he died and his mother the 3rd defendant is his sole legal heir. The execution of suit agreement of sale Ex.Al is also not disputed. The 1st defendant both in his written statement and in his testimony as DW1 admits about the execution of the suit agreement of sale Ex.Al with respect to the plaint ''A'' schedule property. He also admits the receipt of advance amount of Rs.10,000/-. DW2 is an attestor of Ex.Al DW3 is another villager, who has also spoken to with regard to the execution of agreement of sale Ex.Al. Thus, besides the testimony of plaintiff as PW1, there is ample evidence on record to show that the 1st defendant agreed to sell the plaint ''A'' schedule property to the plaintiff at the rate of Rs.6,000/- per acre and after taking an earnest amount of Rs. 10,000/-, Dl executed the suit agreement of sale. The balance of sale consideration was agreed to be paid within 45 days. Admittedly, D2 and D3 did not join the 1st defendant in executing the suit agreement. The learned Counsel for the appellant-plaintiff vehemently contends that plaint ''A'' schedule property is the self-acquired property of the Defendant No. 1 as he had purchased the same under Ex.B3, B4 and B5 out of his own income and as such, he is the absolute owner of those properties and the plaintiff is entitled for specific performance of the agreement of sale with respect to the entire ''A'' schedule ''property. The learned Counsel for the 2nd respondent, on the other hand, submits that plaint ''A'' schedule property was acquired with income from the ancestral properties and also with the aid of the sale proceeds of the ancestral property and as such, the 1st defendant has got l/3rd share only in the property. The learned Counsel for the appellant-plaintiff further submits that the 1st defendant referred the property as his self-acquired property in the agreement of sale Ex.A 1 and that the sale deeds Exs.B3, B4 and B5 under which, the suit property was purchased also stood in the name of the 1st defendant. Simply because, the 1st defendant who is the father of the 2nd defendant, referred to these properties as his self-acquisitions, they do not become his self-acquired properties. Further, equally, simply because the sale deeds stand in the name of the father, the properties cannot be categorised as his self-acquisitions. The 1st defendant examined as DWI has categorically stated on oath that he purchased the suit properties with the aid of the sale proceeds of the ancestral properties. The 2nd defendant examined as DW4 also deposed that these properties were purchased out of income from the ancestral properties. DW1 in his cross-examination stated thus :
"In Kancheralapalem, I owned ancestral property. I sold the said properties and purchased the lands in Sathenapalli. I migrated to Erukupalem of Sattenapalli Taluk."
In his cross-examination also, he deposed that he got Acs.3.20 cents of land situated in Kancheralapalem from his father and that he sold the same and he executed the sale deed original of Ex.Bl representing his two minor sons. He further, categorically, stated that with the sale proceeds of these lands, he purchased the suit lands. He also deposed that he sold 25 cents of land under Ex.B11 to one B. Venkateshwarlu and he also acted as guardian of D2. He further stated in his cross-examination that he purchased the suit property with the sale consideration covered under Exs. Bl, B2 and Bl 1. DW4 also deposed in his examination-in-chief itself that his rather inherited an extent of 3 acres of land from his father and the suit properties have been acquired by him after selling the ancestral property. DWs. 1 and 4 have been subjected to cross-examination and nothing has been elicited to discredit their testimony on this aspect. The plaintiff examined as PW1 did not specifically deny the existence of ancestral property for the family of the defendants 1 to 3. In his cross-examination PW1 states that he does not know whether the defendant No. 1 sold his ancestral property in Kancherlapalem and purchased the lands in Erukupalem. Further, PW1 admits that the 1st defendant is an agriculturist. He did not specifically say that Dl has got other-sources of income for purchasing the suit-land. In the absence of any other sources of income for the 1st defendant, it has to be held that out of the income from the ancestral agricultural income only, the 1st defendant had purchased the suit property. As seen from the judgment under appeal, the learned Subordinate Judge has given cogent and convincing reasons to hold that the plaint ''A'' schedule property is not the self-acquired property of Dl and it is the joint family property of defendants 1 to 3. I do not find any reason to differ with this finding on a consideration of the entire evidence on record.
10. The learned Counsel for the appellant-plaintiff also alternatively submits that even if the suit property is the joint family property, the 1st defendant as Kartha or manager of the joint family property altered into agreement of sale to sell the property with the plaintiff and that he agreed to sell the same for the joint family necessity for the benefit of the joint family estate and as such, the suit agreement of sale is also binding on defendants 2 and 3 even though they did not join as parties to that agreement. The law is well-settled that the manager of the Joint Hindu Family has power to alienate for value joint family property so as to bind the interest of both adult and minor co-parceners in the joint family property provided that the alienation is made for legal necessity or for the benefit of the estate. The-following have been held to be family or legal necessities :
(a) Payment of Government revenue and of debts which are payable out of the family properties.
(b) Maintenance of co-parceners and of the members of their family.
(c) Marriage expenses of co-parceners and daughters of the co-parceners.
(d) Performance of necessary funerals.
(e) Cost of necessary recovery of litigation.
(f) Costs of defending the head of the family of any other member against any serious criminal cases.
(g) Payment of debts incurred for family business or other necessary purpose (vide Para 243 at page 227 of Principles of Hindu Law by Mulla 16th Edition).
11. As seen from the evidence on record, the plaintiff examined as PW1 did not state that the 1st defendant had agreed to sell the property for any of these legal necessities of the joint family. On the other hand, the plaintiff admits that the 1st defendant had no debts to be discharged. Admittedly, the 2nd defendant has been working as Research Professor. The joint family of the defendants has got substantial landed property. As such, there cannot be any necessity for the 1st defendant to alienate the suit property in favour of the plaintiff. DW1 admits that he kept the earnest amount of Rs. 10,000/- in Bank deposit and returned the same obtaining a Bank Draft when his son, 2nd defendant, refused to agree for the sale. Thus, there is, absolutely nothing on record to show that the sale under Ex.Al was for family or legal necessity of the joint family of the defendants 1 to 3, Further, on an earnest consideration of the evidence on record, it cannot also be said that the sale under Ex.Al was for the benefit of the estate. Therefore, 1 am unable to agree with the contention, raised by the leaned Counsel for the appellant-plaintiff that the alienation made by Dl as Manager for the joint family of Dl to D3 is binding on the defendants 2 and 3. As earlier stated, the 3rd defendant being the mother has succeeded to the 1/3rd share of her deceased son Veera Shankara Rao.
12. The law is now well-settled that even a coparcener may dispose of his undivided share in the coparcener property. Although the 1st defendant in the instant case, agreed to sell the plaint ''A'' schedule property to the plaintiff under the suit agreement of sale that being the coparcenary property or the joint family property, the suit agreement of sale is valid only to the extent of his l/3rd share therein. The plaintiff cannot also ask for general partition of the entire joint family properties and for allotment of the entire plaint ''A'' schedule property to the share of the 1st defendant and to direct the 1st defendant to execute a registered sale deed with respect'' to the plaint ''A'' schedule properties in his favour. The appellant-plaintiff is entitled for specific performance of agreement of sale with respect to the l/3rd share of the 1st defendant only in plaint ''A'' schedule property.
13. For the foregoing reasons, I decide all the three points in favour of the defendants 1 to 3 and against the appellant-plaintiff.
14. As seen from the impugned judgment, the learned Subordinate Judge has rightly held that the plaintiff is entitled for specific performance of agreement of sale Ex.Al with respect to the l/3rd share of the 1st defendant in the plaint ''A'' schedule property. But wrongly directed that a preliminary decree be passed for partition of plaint ''A'' schedule property into three equal shares and allot one such share to the 1st defendant and that the share of the 1 st defendant shall be allotted to the plaintiff. This relief of granting preliminary decree for partition in a suit for specific performance is misconceived. Admittedly, the plaintiff filed the suit for specific performance of the agreement of sale. It is well-settled that the agreement of sale does not confer any title on the plaintiff and as such, he is not entitled for partition of the suit property on the ground that he is entitled for the share of the 1st defendant. It is no doubt true that in pursuance of the agreement of sale, the 1st defendant has to execute a registered sale deed. It is only after its due execution, the plaintiff gets title to the property and only thereafter, the plaintiff can seek for partition and for allotment of share of the 1st defendant to him in the said partition. It is not open to the Court to pass a preliminary decree for partition in a suit filed by the plaintiff based on agreement of sale. Therefore, the direction given by the learned Subordinate Judge, while passing the preliminary decree for partition is liable to be set aside.
15. In the result, I do not find any merits in this appeal and the appeal is dismissed with costs. But the judgment and decree in O.S. No. 199/79 on the file of the Subordinate Judge, Narasaraopct are modified as follows :
(i) The suit is decreed for specific performance of contract of sale, dated 7-6-1978 relating to the share of 1st defendant alone in the plaint ''A'' schedule property directing the 1st defendant to execute a registered sale deed in favour of the plaintiff after receiving the balance of sale consideration relating to his l/3rd share in the plaint ''A'' schedule property and on his failure to execute the sale deed as directed, the plaintiff is at liberty to obtain the sale deed through Court.
(ii) The suit in so far as the relief of partition of ''A'' or ''B'' schedule properties, as prayed for is dismissed.
(iii) The defendants 4 and 5 arc at liberty to take separate steps against the plaintiffs relating to the issue whether the suit agreement was taken nominally in the name of the plaintiff.
(iv) The plaintiff is entitled for proportionate costs against the 1st defendant.
(v) Defendants 2 to 5 shall bear their costs.
