1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.121 OF 2008 WITH CIVIL APPLICATION NO.345 OF 2008 WITH CIVIL APPLICATION 1099 OF 2008 Dnyandeo Bhaurao Jadhav ] age adult, Occ. Agril. & trading ].. Appellant. R/o Nyayadongari, Tal.Nandgaon, ](org.Deft.No.2) Dist.Nashik. ] versus 1. Balu Ramdas Gaikwad, ] age adult, Occ. Service ] R/o Deopur, Plot No.177 ] New Amar Nagar, Dhule ] ] 2. Bharat Ramdas Gaikwad ] age adult, Occ. Service ] R/o.Nyandongari, Tal.Nandgaon ] Dist.Nashik ] ] 3. Sumanbai Ramdas Gaikwad, dead ] ] 3a Ranjanabai Namdeo Dhope, ] age 36 Occ. Household ] R/o Tingri, Tal.Malegaon ] Dist.Raigad ] ] 3b Shilabai Sadashiv Maratha ] age 33, Occ. Household ] R/o Badagwar Plot, Supda ] Appachi Colony, Dule,Dist.Dhule ]... Respondents. Mr.R M Haridas i/by Mr.P N Joshi for the Appellant. Mr. M M Sathaye for Respondent No.1. Mr.Satyajeet Dighe i/by Mr. Sagar Kasar for Respondent Nos.2 & 3B 2 CORAM : C.L.PANGARKAR, J. DATE : 24th February 2010 JUDGMENT : [DELIVERED IN CHAMBER] 1. Rule. Rule returnable forthwith. Heard finally. 2. This Second Appeal has been moved by the original Defendant No.2 against the judgment and decree passed by the Courts below. Few facts giving rise to this appeal are as under :- 3. The Respondents/Plaintiffs instituted a suit for declaration and injunction. The Respondents contended that the suit property belongs to joint family of the Respondents/Plaintiffs and the Defendant No.1-their father Ramdas. It was their contention that since the suit property was joint family property, Ramdas had no right to enter into an agreement of sale of the suit property with Defendant No.2 the present Appellant. They, therefore, sought a declaration to the effect that it be declared that they have share in the suit property and the transaction i.e. the agreement of sale between the Defendant No.1 and the Defendant No.2 is not binding upon them. 3 4. The suit was resisted by the Defendant No.2 the present Appellant. It was his contention that the suit property belongs to Defendant No.1 Ramdas and he had every right to enter into agreement of sale of the suit property. It is also his contention that he has already instituted a suit for specific performance of contract. 5. The learned Judge of the trial Court decreed the suit. An appeal was preferred before the District Judge. The said appeal was heard and decided by the District Judge and he remitted the matter back to the trial Court to decide the suit afresh and to decide the question as to whether the suit property exclusively belongs to Defendant No.1 Ramdas. Although both the suits were directed to be decided together, it appears that the learned Civil Judge did not decide both the suits together but decided this suit independently. Further it appears that although the matter was remitted back for fresh trial, the learned Judge of the trial Court recorded the findings on the issue framed by the Appellate Court alone and did not decide the suits afresh as a whole. 6. The trial Court has held that the suit property did not exclusively belong to Defendant No.1 Ramdas. Feeling aggrieved thereby the Defendant No.2 preferred an appeal before the District 4 Judge. The District Judge, who heard the appeal, has recorded inconsistent findings so far as Issues Nos. 3, 4 and 5 are concerned. While deciding issue No.4, he holds that the suit property was not ancestral joint family property but at the same time, he holds that the Plaintiffs have an interest in the suit property by birth. The learned Judge, therefore, dismissed the appeal. Feeling aggrieved thereby the Defendant No.2 preferred this Second Appeal. 7. I have heard the learned counsel for the Appellant and the learned counsel for the Respondents. 8. This appeal needs to be admitted on the following substantial question of law :- “Whether the Appellate Court should have held that the transaction is binding as far as the share of Defendant No.1 was concerned ?” 9. Undisputed fact is that the Defendant No.1 entered into an agreement f sale of the suit property. The trial Court has held, upon ο consideration of evidence, that it was a joint family property. It is found by the trial Court that the suit property was purchased by Shamrao – the grand father of the Plaintiffs and the father of Defendant 5 No.1 and it came in the hands of the Defendant No.1 from Shamrao after his death. It is also found that Shamrao had other ancestral property and from the income of that property, the suit property was purchased. Obviously, as far as the Plaintiffs and the Defendant No.1 are concerned, the suit property is a joint family property. The findings recorded against Point Nos.3 and 4, as observed earlier, appear to be rather strange. The learned Judge of the appellate court framed following points and records the findings against Point Nos.3 to 5 as follows :- POINTS FINDINGS. 3. Whether the appellant/defendant No.2 proves that suit land on the date of execution of agreement of sale by original defendant No.1 to him was exclusively owned and possessed by him? No 4 Whether the respondent/plaintiffs prove that the suit property happen to be ancestral property of thier joint Hindu family No 5 Whether the respondents/plaintiffs prove that they were having title and interest in suit land by birth? Yes. 6 The learned Judge records findings in the affirmative as far as the Point No.5 is concerned. Having recorded finding in affirmative against Point No.5, the findings as against Point No.4 also ought to be in the affirmative as a necessary corollary. It is only in the joint family property that a person gets interst by birth. Be that as it may. 10. Defendant No.1 was a karta of joint family. A karta of a joint family has a right to sell the property of joint family for legal necessity. In the instant case, there is merely an agreement of sale of property. Unless there is actual transfer of the property, there cannot be a challenge on the ground of sale being not for legal necessity. It is undisputed fact that defendant No.2 has filed suit for specific performance of contract against defendant No.1 It is that suit, that the court will have to take a decision if decree for specific performance of contract should or should not be passed. In the instant case, it can only be observed that the transaction as far as share of defendant No.1 is concerned, is binding on defendant No.1. The trial Court has rightly declared that the agreement of sale is not binding on the Plaintiffs Nos. 1 to 3 to the extent of their share since the property was a joint family property. With these observations, the appeal is liable to be dismissed and the same is dismissed with no order as to costs. 7 11. In view of dismissal of the Second Appeal, the Civil Application Nos.345 of 2008 and 1099 of 2008 do not survive and the same are accordingly disposed of. [C.L.PANGARKAR, J]