N. D. VENKATESH, J. ( 1 ) THIS appeal has arisen out of the judgment and decree dt. 24-2-1978 of the Civil judge, Gadag, in RA No. 42 of 1977 by which judgment he has confirmed the judgment and decree dt. 18-3-77 of the prl. Munsiff, Gadag, in OS No. 55 of 1974 on his file. ( 2 ) THE appellant herein was the 1st defendant and respondents 1 to 4 were plaintiffs 1 to 4 respectively In the trial court. Respondent 5 herein was the 2nd defendant therein. ( 3 ) IN the course of this judgment I shall be referring to the parties as the plaintiffs and the defendants and in the rank in which they stood in the trial Court. ( 4 ) THE plaintiffs are the sons of the 2nd defendant. In the suit they had filed, the plaintiffs had sought for a declaration that an agreement of sale dt. 19-3-1958 executed by their father, the 2nd defendant in favour of the 1st defendant was not binding on them or their shares in the properties involved in the said agreement; and that they were not bound by the decree for specific performance obtained by the 1st defendant against the 2nd defendant in LC Suit No. 44 of 1961 on the file of the then Civil Judge, Junior Division, gadag. They had also claimed a permanent injunction against the 1st defendant restraining him from interfering with their (plaintiffs) possession and enjoyment of the suit property. ( 5 ) THE suit property, called a vakar, consists of a shop, godown, and an open site situated in Gadag city, fully described in para 1 of the plaint. The joint family consisting of the plaintiffs and their father, the 2nd defendant, has 1/4th share in the aforesaid vakar. ( 6 ) IN the written statement he had filed, the 1st defendant did not dispute that the suit property was the property of the joint family of the plaintiffs and the 2nd defendant. His specific plea was, firstly, that that agreement the 2nd defendant had entered into with him and the subsequent Court decree were binding on the plaintiffs in view of the fact that the transaction was for legal necessity and benefit of the estate. His specific plea was, firstly, that that agreement the 2nd defendant had entered into with him and the subsequent Court decree were binding on the plaintiffs in view of the fact that the transaction was for legal necessity and benefit of the estate. Secondly, that even other wise the suit filed by the plaintiffs was barred by the principles of res judicata in view of the findings in the previous suit in lc Suit No. 44 of 1961 on the file of the then Civil Judge, Junior Division, Oadag. ( 7 ) IN view of the rival pleadings the learned Munsiff had framed as many as 12 issues. ( 8 ) ON behalf of the plaintiffs the 1st plaintiff got himself examined as PW 1 and produced a few documents. On his behalf the 1st defendant got himself examined as DW 1 and also placed a few documents and reference to these documents will be made, at appropriate stages, later. ( 9 ) THE Munsiff, answering the relevant issues in favour of the plaintiffs, held that the transaction, referred to above, was not for legal necessity or benefit of the estate and, therefore, did not bind the plaintiffs or their share in the suit property. On the pica of res judicata he was of the view that the previous decree did not bar the present suit. ( 10 ) THE Civil Judge, as already stated, has confirmed this judgment and decree of the Munsif, ( 11 ) LEARNED Counsel appearing for the parties in this appeal confined their arguments only to the following two questions : 1) Whether the agreement entered into by the 2nd defendant with the 1st defendant and the decree for specific performance passed in LC Suit No. 44 of 1961, referred to above are not binding on the plaintiffs for the reasons stated by them-want of legal necessity and benefit to the estate ? 2) Does the decree in LC Suit No. 44 of 1961 operate as res judicata against the plaintiffs and thereby is the present suit barred ? ( 12 ) NOW, to take up the 2nd question first for consideration. The 1st defendant in this suit, who was the plaintiff in LC suit No. 44 of 1961, had filed that suit against the 2nd defendant herein (who was the 1st defendant in the said suit) and one dallchand Punamchand Shedji. ( 12 ) NOW, to take up the 2nd question first for consideration. The 1st defendant in this suit, who was the plaintiff in LC suit No. 44 of 1961, had filed that suit against the 2nd defendant herein (who was the 1st defendant in the said suit) and one dallchand Punamchand Shedji. The plaint averments made therein were: that the 1st defendant in the said suit had entered into an agreement with the plaintiff to sell his 1/4th share in the suit property for a sum of Rs. 3,000; that he had taken an advance of Rs. 2,000, that he had undertaken to execute the sale deed within the time stipulated in the said agreement; and since he was trying to back out from the agreement with the intention to sell away the property to the 2nd defendant (Dallchand), he had brought the suit seeking specific performance of that agreement. In his written statement, the first defendant in the said suit, amongst other contentions, had also taken up the plea that his sons (present plaintiffs) were necessary parties to the suit that there was no necessity to sell the joint family property ; that, due to some unfortunate circumstances, as stated by him in his written statement, he had entered into that agreement ; and that, therefore, the suit should be dismissed. ( 13 ) IN the said suit the trial Court, while considering issues Nos. 3 and 4, had held that the agreement entered into by the father of the plaintiffs, the 1st defendant In the said suit, was in the interest of the joint family consisting of himself and his sons. ( 14 ) ACCORDING to the learned counsel for the appellant this finding binds the plaintiffs in the present suit and, therefore, since that finding operates as res judicata, they should not be permitted to say in this suit that that agreement was not for legal necessity or for family benefit and, therefore, does not bind their shares. In this connection he places strong re liance on a decision of the Madras High court in Balaraj (minor) represented by next friend vijayalakshmi Ammal v. Pichai Muthu Chettiar (1 ). In this connection he places strong re liance on a decision of the Madras High court in Balaraj (minor) represented by next friend vijayalakshmi Ammal v. Pichai Muthu Chettiar (1 ). Rajamannar, J. , (as he then was) observes in that case as follows :"but a decree obtained against a father or a manager of a joint family in respect of a claim to immovable property would bind all the members of the family represented by the father or by the managing member. It is not necessary that the other members of the family should eo nominee be parties. This is because of the general rule of hindu Law that in transactions affecting property all the members of the family must be deemed to have been impliedly represented by the managing member unless It was clear that the right sought to be litigated was a right in when the managing member was claiming a right adverse to the interest of the joint family". The question as to whether a Hindu son, in trying to avoid the liability created by the manager over some joint family property can go behind a decree obtained against his father, to which he was not a party, did not directly arise in this cast. The suit claim In that case was "for a declaration that the property described is the schedule to the plaint belongs to the plaintiffs and for a permanent injunction restraining defendant 1 from interfering with their possession (para 1)". Relying on a Full Bench decision of the Lahore high Court in AIR 1944 Lahore 220 it was argued by the learned counsel for the contesting respondents that the sons had a right to avoid tbe decree. The learned judge, while distinguishing tbe Lahore case from the case he was dealing with, observes at para 5 thus :"mr. Srinivasa Iyer cited to me the full Bench decision of tbe Lahore High court in 26 Lahore 67 (-AIR 1944 Lahore 220 ). It was held in that case, one of the learned Judges dissenting, that a hindu son in a suit, to avoid the liability of the joint family property in his bauds in execution of a mortgage or simple money decree obtained against his father, can go behind the decree so as to challenge the existence of the debt on which the decree is based. The point itself is debatable one but it does not arise in this case". (Underlining (italics) supplied ). Thus, as stated by the learned Judge, himself, the question which we are dealing with did not directly arise in Balaraja's (1) case (supra ). ( 15 ) IN Shankar Rao v. Kamta Prasad govindprasad Agrawal (2) the creditors had obtained decrees agaiust the father and manager of a joint family consisting of himself and his sons. The sons were not parties to any of those decrees. The question was whether the sons could have avoided those decrees on the plea that the debts contracted by their father was neither for legai necessity nor for family benefit. A Division Bench of the Nagpur high Court in that case has stated that "the decrees were, therefore, binding on the sons unless they were entitled to challenge them on grounds personal to them under the Hindu Law", (para 33) the Court further observes that:"the sons were bound hy the rule of res judicata only with respect to a pica which was open to the father equally with the sous, that is, a plea available to the joint family whether expressly or constructively decided". (Paras 41 and 44) (underlining (italics) supplied ). I am in respectful agreement with the above views. Also in this connection the observations of the Allahabad High Court in Rajeshwar Dube v. Ram Sanmukh Mistr (3) may be noted. In that case the father had mortgaged joint family properties. A suit had been filed against him by the mortgagees. The father, amongst other contentions, had taken up the plea that the mortgage deed he had executed v/as without legal necessity and therefore did not bind the other shares of the family'. An issue had been raised, as in the instant case, on that aspect of his case. That issue had been decided against him In the subsequent suit by the sons challenging that alienation it was argued as in this case, that that previous finding operates as res judicata against them though they were not parties, for the reason that the father- manager, as representing their family, had suffered that decree, thereby that question had been concluded. That issue had been decided against him In the subsequent suit by the sons challenging that alienation it was argued as in this case, that that previous finding operates as res judicata against them though they were not parties, for the reason that the father- manager, as representing their family, had suffered that decree, thereby that question had been concluded. In answer to this contention the learned Judge has stated as follows :"the right of the co parceners to object not on the ground of non-joinder but on the ground of the debt being not binding on them or as being tainted with illegality or immorality, is not affected by the proceedings to which they have not been made parties. It makes no difference that in the present case the father did, as a matter of fact, raise the plea about want of legal necessity and the trial Court wrongly allowed him to raise it and also gave a finding on it. It is elementary law that it is not open to an alienor to impeach his own alienation". In the instant case also the 2nd defendant could not have taken the plea in the previous suit impeaching his own agreement on the ground that it was neither for legal necessity nor for benefit of the estate. Besides this, the plea that the agreement entered into by their father was neither for legal necessity nor for the benefit of the estate was a plea personal to them (the sons) and they alone could raise that plea and not their father who was a party to the said agreement. In this view of the matter the finding in the previous suit. (LC Suit No. 44/61) that the agreement executed was beneficial to the estate and for legal necessity does not bind the present plaintiffs. They have a right to impeach the decree giving effect to the agreement executed by their father, and if they are successful in impeaching that agreement they have to succeed and the decree, in so far as their interests in the property are concerned, will not bind them and their shares ( 16 ) THE next question is as to whether the agreement on which is based the previous decree compelling the plaintiffs father to execute the sale deed was for legal necessity or benefit of the estate. Both the Courts have held concurrently that it is not so. Counsel for the appellant argued that the Courts below have misread the evidence, have not properly approached the issue involved and, therefore the finding is liable to be set at nought. It was, on the other hand, argued by the counsel for the respondents , that the findings arrived at, on appreciation of facts, should not, unless there are compelling reasons, be set aside In second appeal. ( 17 ) THE agreement had been executed on 19 3 1958. It was extended on two occasions. The 2nd defendant had to execute the sale deed by 6 3-1961. Consideration was Rs. 3,000 and the 2nd defendant had received Rs. 2,000 out of the same. Subsequently he also appears to have taken a couple of bundrrds more. As already stated the property belonged jointly to the joint family of the 2nd defendant and three others and this family had only 1/4th share and what was sought to be sold under that agreement was this 1/4th. In the agreement itself it H mentioned that he, the 2nd defendant, wanted to sell his share in this property so that he may purchase, from out of the consideration received in this transaction, a land from one Venkanna Naika. It was submitted by the counsel for the appellant that three circumstances have been brought on record to show that the 2nd defendant wanted to sell the property in order to benefit the estate of the joint family ; one is to purchase an agricultural land from Venkanna naika, the second is that the property was subjected to a lease and was not yielding good income, and thirdly that the manager wanted some funds to celebrate the marriage of one of his daughters. ( 18 ) AS stated above what is mentioned in that agreement is that the executant (the 2nd defendant) wanted to sell the suit property so that he may purchase an agricultural land belonging to one Venkanna naika. Venkanna Natka owned agricultural lands in Mulugund village of Gadag hobli. One of the lands that Venkanna naika owned was Sy. No. 799/2b measuring 4 acres 30 guntas and assessed to rs 14 80 ps. Ext. D-3, a certified copy of the record of rights shows this land standing in the name of the 2nd dcfendant during the years 1973 76. One of the lands that Venkanna naika owned was Sy. No. 799/2b measuring 4 acres 30 guntas and assessed to rs 14 80 ps. Ext. D-3, a certified copy of the record of rights shows this land standing in the name of the 2nd dcfendant during the years 1973 76. This means that the 2nd defendant, having acquired title to this land, in the concerned revenue records his name is broughtion record as against this number Sy. No. 799/ 2b. The Munsiff says that the 1st defendant should have shown that during 1958, the year in which the 2nd defendant had executed that agreement showing the aforesaid circumstances at the ground to sell the suit property, the 2nd defendant had acquired this land (Sy. No. 799/2b ). Giving this as the ; reason he discarded this piece of evidence placed on record by the 1st defendant to show that that agreement had been executed to acquire Venkanna's land which measured 4 and odd acres and, therefore, the transaction was beneficial to the estate. While concurring with this view what the Civil Judge says is that there was no positive evidence to show that the 2nd defendant had purchased Venkanna naik's land. But it may be noted that as per entries in Ext. D-3 extract of the record of rights, Sy. No 799/2b, measuring 4 acres 30 gs , which stood in the name of venkanna Naik, now stands In the name of the 2nd defendant. In the circumstances it is fair to assume that the 2nd defendant had purchased the land of Venkanna Naik, thus fulfilling his desire expressed in the agreement in question. The Civil Judge has offered another reason not to accept this evidence of the 1st defendant in support of his case that the transaction covered under the agreement was to purchase another landed property in place of the suit property. What the Civil Judge says is that there is no evidence on record to show that the 2nd defendant had purchased the land of Venkanna Naik from the amount obtained under the agreement. What the Civil Judge says is that there is no evidence on record to show that the 2nd defendant had purchased the land of Venkanna Naik from the amount obtained under the agreement. But, it may be noted, as observed by the supreme Court in Radhakrishnadas v. Kaluram (4) that "what the alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity" and "the reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself". What is to be seen is as to why the 2nd defendant, under that agreement, wanted to part with the family's 1/4th share in the vakar. The purpose is clearly mentioned in the document itself. It is mentioned in the written statement of the 1st defendant (at para 14 (a) as amended on 2-11-1976) that the 2nd defendant, had agreed to sell the said vakar being of the view that it was not profitable to keep that 1th share and also that it would be more profitable to sell that share and purchase Venkauna Naik's land. The 1st plaintiff, who had got himself examined as PW 1, has stated in his evidence that this 1/4th share of the vakar was subjected to a lease. It is his say that that property used to fetch annually Rs. 600 as rent. In cross-examination the suggestion put to him was that the property was not fetching even that much of rent annually. No doubt this suggestion is denied. It should not have been difficult for the plaintiffs to place some convincing evidence on record to show as to how much rent the property used to fetch. Besides this, if it is their case that their father had not purchased Venkanna Naik's laud, as mentioned in that agreement, they should have explained the entry at ext. D 3 wherein their father's name it brought on record as the owner re. that land. These were matters well within their knowledge. Besides this, if it is their case that their father had not purchased Venkanna Naik's laud, as mentioned in that agreement, they should have explained the entry at ext. D 3 wherein their father's name it brought on record as the owner re. that land. These were matters well within their knowledge. In this connection the following observations of the Supreme court In Smt. Rani v. Smt. Santa Bala debnath (5) may be noted :"the weight to be attached to the recitals varies according to the circumstances. Where the evidence, which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale, is withheld, such evidence being normally not available to the alienee, the recitals come to his aid with greater force and the Court may be justified, in appropriate cases, in. raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession". ( 19 ) THE Courts below have wrongly approached this question. My careful analysis of the evidence clearly points out to the fact that the 2nd defendant, after executing the agreement in favour of the 1st defendant and augmenting his resources, had purchased Venkanna Naik's land. The evidence also shows that the 1/4th share that this family bad in the vakar property in Oadag town was subjected to a lease. It appears more probable that it was not yielding good income and to the expectation of the owners. Therefore, the manager wanted to purchase, after selling away this property, some valuable land in the neighbourhood of Gadag town or within the vicinity where he had agricultural lands. It has come in evidence that this family owned agricultural lands in village mulugund. It is in this village the aforesaid 4 and odd acres of land is situated. Even if it is held that the contesting defendant had not been able to establish the third circumstance to part with this vakar i. e. , celebration of the marriage of 2nd defendant's daughter, the other factors, referred to above, by themselves are sufficient to hold that the 2nd defendant had acted prudently and in the interest of the family in entering into the aforesaid agreement. That act of his has really benefit ted the family. That act of his has really benefit ted the family. It is true that in a second appeal findings, on a question like this, arrived at by the courts below are not normally interfered with unless there are weighty reasons. In the Instant case I am of the view that the findings of the Courts below are based on irrelevant considerations and without drawing necessary inferences from the proved facts and circumstances. The decree granted in LC Suit No. 44 of 1961 directing specific performance of that agreement is, in the circumstances, binding on all the plaintiffs. ( 20 ) FOR the reasons aforesaid this appeal is allowed. The judgments and decrees of both the Courts below are hereby set aside. The plaintiffs' suit is dismissed with costs throughout. --- *** --- .