Judgment Gurusharan Sharma, J. 1. Defendants 1 and 2 of Title Suit No. 101 of 1975 have preferred this Appeal against the impugned judgment and decree dated 30.6.1989, passed by the 3rd Additional Subordinate Judge,Arrah, where by the plaintiffs were directed to deposit a sum of Rs. 62,000.00 , being the remaining amount of consideration money, within a period of three months and the defendants were directed to withdraw the said amount and then execute the sale deed with respect to the suit properties in favour of the plaintiffs. 2. One Baldeo Singh, son of Kali Singh, of village Larauba, P.S. Makdumpur, district Gaya, on 27.5.1975 executed an agreement for sale in favour of Janki Singh and others of village Bhikhampur, P.S. Sahar, district- Bhojpur with respect to 3.57 acres land of Revisional Survey Khata Nos. 56 and 66 situated at village Bhikampur. The lands, including a house over R.S. Plot No. 625 was agreed to be sold for Rs. 80,000.00 . A sum of Rs. 14,000.00 was paid in advance and Janki Singh and others were put in possession of the lands and the house in part performance of contract. The sale deed was to be executed by 1.8.1975, after obtaining necessary permission form the Consolidation Officer under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. 3. On 12.6.1975, Baldeo Singh filed applications for permission under Sec. 5 of the said Act which were registered as case Nos. 192,193 195 and 196 of 1975. One Paltan Singh said to be the husband of Jitni. One of the daughters of Baldeo Singh filed objections thereto. The said objection was replied to (Ext. 3/A) by Baldeo Singh. However, by order dated 30.6.1975 (Exts. 17 to 17/C) permission was granted. In the meantime, Janki Singh and others claimed to have paid further sum of Rs. 4000.00 to Baldeo Singh on 15.6.1975. 4. Unfortunately on 7.7.1975 Baldeo Singh was killed. He left behind three married daughters Jitni, Sampari and Indra mari. His wife Manmati Kuer had predeceased him about six months earlier. On 20.8.195 Janki Singh and others sent notice to the three daughters asking them to execute the sale deed in respect of the suit properties by accepting the balance amount of consideration of Rs. 62,000.00 , but they declined. 5. His wife Manmati Kuer had predeceased him about six months earlier. On 20.8.195 Janki Singh and others sent notice to the three daughters asking them to execute the sale deed in respect of the suit properties by accepting the balance amount of consideration of Rs. 62,000.00 , but they declined. 5. Janki Singh and others thereafter filed Title Suit No. 101 of 1975 in the Court of 3rd Additional Subordinate Judge, Arrah against the three daughters of Baldeo Singh for specific performance of contract by executing the sale deed in respect to the suit lands after receiving the balance consideration amount and/or alternatively for return of the said sum of Rs. 18,000.00 by the defendants to them. 6. The two daughters of Baldeo Singh, namely, Jitni and Sampari, the defendants 1 and 2, filed a joint written statement and contested the suit. According to them the lands of R.S. Khata No. 66 belonged to Manmati Kuer and after her death her three daughters along with her husband inherited the same. Baldeo Singh, being one of the co-sharers alone had no legal right to enter into an agreement for sale with respect to the entire lands of said R.S. Khata No. 66, wherein his three daughters were also co-sharers. The plaintiffs never came in possession over the suit properties, rather the defendants always remained in possession thereof. 7. According to the contesting defendants the lands of R. S. Khata No. 66 stood recorded as Bakast Malik in the Cadestral Survey Khatiyan. Before vesting of Zamindari in the State of Bihar, under the provisions of the Bihar Land Reforms Act, 1950, the then landlord, namely, Baldeo Singh settled those lands to his wife Manmati Kuer. Accordingly, after vesting, a Jamabandi was created in her name with respect to those lands in the revenue records of the State of Bihar. In the Revisional Survey Khatian also those lands were recorded as raiyati lands of Manmati Kuer, vide R.S. Khata No. 66. After her death, her three daughters as well as her husband inherited the estate left by her in equal shares. 8. The trial court decreed the suit holding that the settlement of the lands by Baldeo Singh to his wife, Manmati Kuer at the time of vesting of the Zamindari was a sham transaction and actually the lands were wrongly recorded as raiyati lands of Manmati Kuer vide R.S. Khata No. 66. 8. The trial court decreed the suit holding that the settlement of the lands by Baldeo Singh to his wife, Manmati Kuer at the time of vesting of the Zamindari was a sham transaction and actually the lands were wrongly recorded as raiyati lands of Manmati Kuer vide R.S. Khata No. 66. The lands were never settled to her. Baldeo Singh had, therefore, legal and valid title over the suit lands i.e. lands of R.S. Khata Nos. 56 and 66 and he along was entitled to enter into an agreement for sale thereof. The Mahadanama was a genuine document and was duly executed by Baldeo Singh. However, the plaintiffs failed to prove their physical possession over the suit properties by way of part performance of the contract. The plaintiffs were always ready and willing to perform their part of the contract and they were entitled to a decree for specific performance of contract in respect of the entire suit properties. 9. The subject matter of the agreement for sale, Ext. 4 i.e. the lands of R.S. Khata Nos. 56 and 66 were Bakast lands of the then landlord Baldeo Singh. In the year about 1949 Baldeo Singh settled those Bakast lands with his wife Manmati Kuer. In the R.S. Khatiyan, Ext. K name of Manmati Kuer stood recorded as raiyat of the lands of R.S. Khata No. 66. hi the return, Ext. H filed by Baldeo Singh at the time of vesting of Zamindari, the name of Manmati Kuer was mentioned as raiyat over the lands of R.S. Khata No. 66. D.Ws. 2, 3, 5, 8, 10 and 13 deposed to the effect that Manmati Kuer was in exclusive possession over the lands of R.S. Khata No. 66. However, Manmati Kuer was admittedly a pardanasim lady and her entire affairs were looked after by her husband, Baldeo Singh. In such circumstance, the trial court, in my opinion, erred in holding that Baldeo Singh had legal right and valid title over the lands of R.S. Khata No. 66 so as to enter into an agreement for sale thereof. According to the evidence on record Manmati Kuer died six months earlier to the death of her husband Baldeo Sigh i.e. some time in January, 1975. According to the evidence on record Manmati Kuer died six months earlier to the death of her husband Baldeo Sigh i.e. some time in January, 1975. After her death naturally her estate including the lands of R.S. Khata No. 66 was inherited by her Class I heirs i.e. three daughters aforesaid and the husband So on 27.5.1975 at the time of execution of Mahadanama, Ext. 4 Baldeo Singh had only 1/4th share in the lands of R.S. Khata No. 66 in jointness with his three daughters, who had together 3/4th interest therein. In my opinion, therefore, Baldeo Singh alone was not entitled to enter in to an agreement for sale of the lands of R.S. Khata No. 66 in absence of his three daughters the defendants 1 to 3 to the suit. 10. My view expressed above is based on the following reasons. It stood established beyond doubt that in the lands of R.S. Khata No. 66 the defendants 1 to 3 had 3/4th share along with Baldeo Singh, who had only the rest 1/4th share therein. The suit property was in joint possession and enjoyment. Further nothing has been brought on record to prove that the agreement for sale in question was entered into by Baldeo Singh alone as Karta of the joint Hindu family governed by Mitakshra school of Hindu law for legal necessity or for the benefit of the estate. There was nothing in the plaint to suggest that Baldeo Singh agreed to sell the property because he found it difficult to mange it or because he found that the family was incurring loss by retaining the property. Nor again was there anything to suggest that the idea was to invest the sale proceeds in some profitable manner. In deed there was no allegations in the plaint to the effect that the sale was being contemplated by any consideration of prudence. There being no question of legal necessity involved in the case, the agreement of sale made by Baldeo Singh in respect of the lands of R.S. Khata No. 66 was wholly unauthorised so far as the share of the defendants 1 to 3 was concerned and also in respect of his own share. The contract being indivisible, and the share of Baldeo Singh not having any independent existence, could not be enforced even against him in respect of his undivided interest. 11. The contract being indivisible, and the share of Baldeo Singh not having any independent existence, could not be enforced even against him in respect of his undivided interest. 11. In Balmukund V/s. Kamlawati and Ors. -- , it was laid down that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the Court must be satisfied from the material before it that it was in face such, as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. 12. The three daughters of Baldeo Singh, who were co-sharers so far as the lands of R.S. Khata No. 66 were concerned, were adults, when the contract was entered into. There was no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. They (defendants 1 to 3) have stoutly resisted the plaintiff claim for specific performance. I am sure they would not have resisted the claim for specific performance if they were satisfied that the transaction was of benefit to the family. They were well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by Baldeo Singh, even as Karta, on the ground of alleged benefit to the family without consulting the. Here there is no allegation of such consultation. 13. It was argued on behalf of the Appellants that the lands of R.S. Khata No. 66 being devidable and the defendants 1 to 3 being not consenting parties to the Contract, as held in Sardar Singh V/s. Smt. Krishna Devi and Anr. -- , equity and justice demanded partial enforcement of contract, instead of refusing specific performance in its entirely, which would meet the ends of justice. 14. In the present case there was no claim on behalf of the plaintiff that he was willing to pay the entire consideration for obtaining a decree against the interest of Baldeo Singh alone in the lands of R.S. Khata No. 66. 14. In the present case there was no claim on behalf of the plaintiff that he was willing to pay the entire consideration for obtaining a decree against the interest of Baldeo Singh alone in the lands of R.S. Khata No. 66. However, in the midst of arguments of the instant Appeal, on 12.3.1997, a petition was filed on behalf of the plaintiff-respondent, wherein an undertaking under the umbrella of Sec. 12 of the Specific Relief Act was given that he relinquished his claim to the performance of the remaining part of the contract and his right to compensation either for the deficiency or for the loss or damage, sustained by him on account of the decree for specific performance being passed in his favour with regard to lesser area, namely, the area over which Baldeo Singh has been found to possess title, that is, the entire lands of R.S. Khata No. 56 and the 1/4th share of Baldeo Singh in the lands of Khata No. 66. No rejoinder thereto was filed on behalf of the defendants-appellants. 15. In such circumstances, in my opinion, the equity and justice demanded partial enforcement of the contract (Ext.,4). Accordingly, I hold, on the basis of the ratio of the decision of the Apex Court in Sardar Singh (supra) that the plaintiffs having contracted to purchase the property, it must be referable only in respect of 1/4th of the right, title and interest held by Baldeo Singh, his vendor in the lands of R.S.Khata No. 66 as well as the entire lands of R.S. Khata No. 56. 16. The impugned judgment and decree of the trial court is confirmed only to the extent of 1/4th share in the lands of R.S. Khata No. 66 the entire lands of R.S. Khata No. 56. 17. The Appeal is, accordingly, allowed in part and the impugned judgment and decree are modified and set aside to the extent indicated above. The parties are directed to bear their own costs throughout.