JUDGMENT M.M. DAS, J. – This appeal has been filed against the judgment dated 17.5.2003 passed by the learned Civil Judge (Senior Division), Jeypore in Civil Suit No. 8 of 2002 decreeing the suit for specific performance of contract and directing the appellant-defendant to execute the sale deed in favour of the respondent-plaintiff pursuant to the alleged suit contract for sale. The appellant was the defendant and the respondent was the plaintiff in the court below. 2. Facts reveal that the appellant-defendant and respondent-plaintiff are two brothers, being the sons of Nilakantha Sahu. The suit is their ancestral property. After death of their father, the properties were partitioned between them amicably by virtue of a Family Partition Deed No. 34/88 in which the suit property fell to the share of the defendant. After partition, each of them enjoyed their respective shares without any hindrance and reference to each other. Thereafter, the defendant carried on business at Mumbai and settled there with his family members. The plaintiff alleged in the plaint that the defendant having no chance of returning to Jeypore to look after the suit property decided to sell the same to which the plaintiff agreed to purchase the suit property for a consideration of Rs. 8,00,000/-and a written agreement for sale of the said suit land was executed on 11.11.2001 on payment of an advance amount of Rs. 6,70,000/-by the plaintiff to the defendant. The balance amount was agreed to be paid at the time of execution and registration of the sale deed. It is alleged that in spite of several requests of the plaintiff, the defendant did not come forward to execute the sale deed. Thereafter, the plaintiff issued a lawyer’s notice to the defendant to which the defendant replied that he was unable to execute and register the sale deed as the other brothers did not agree for sale of the suit land in favour of the plaintiff. The suit was filed by the plaintiff before the learned Civil Judge (Senior Division), Jeypore for Specific Performance of Contract, being C.S. No. 8 of 2002, along with an application for permanent injunction against the defendant from executing any sale deed, mortgage, lease or any kind of deed in favour of any other person. The suit was filed by the plaintiff before the learned Civil Judge (Senior Division), Jeypore for Specific Performance of Contract, being C.S. No. 8 of 2002, along with an application for permanent injunction against the defendant from executing any sale deed, mortgage, lease or any kind of deed in favour of any other person. In the said suit, the defendant appeared and filed his written statement denying the claim of the plaintiff, but admitted that he received a sum of Rs. 6,70,000/-on different occasions by different demand drafts from the plaintiff, though he was not aware of any proposal for sale of the suit land. When the defendant came to know about the agreement for sale in respect of the suit land and certain money receipts have been manufactured by utilizing some blank stamp papers with his signature, he immediately returned Rs. 6,70,000/-to the plaintiff, but the plaintiff refused to accept the same. The defendant further stated in his written statement that the alleged agreement for sale had no consent of his son and daughter as they have their legitimate share in the suit land, the same being ancestral property. Denying the allegations made in the plaint, the defendant further stated that the market price of the suit land would be not less than Rs. 1.00 crore and the alleged contract is a created one. 3. The trial court on analyzing the statements of the witnesses and the evidence adduced came to the finding that the plaintiff is entitled to get a decree for Specific Performance of Contract by the defendant and the defendant is injuncted permanently from executing any sale deed, mortgage, lease deed or making any kind of alienation in favour of any other person in respect of the suit property and accordingly, decreed the suit for Specific Performance of Contract filed by the plaintiff subject to the plaintiff depositing a sum of Rs. 1,30,000/- before the court below along with stamp duty and registration charges for execution of the sale deed within a period of three months from the date of the judgment and the defendant was directed to execute the sale deed within a period of three months from the date of the judgment failing which the plaintiff would be at liberty to retain his possession over the suit land till execution of the sale deed. 4. 4. On the above pleadings, the learned trial court framed as many as six issues, out of which issue nos. 3 and 4 are the vital issues, which are quoted hereunder:- “3. Whether the defendant entered into an agreement with the plaintiff on 11.11.2001 to sell the suit land at Rs. 8,00,000/-and in pursuance of such agreement, he received a sum of Rs. 6,70,000/-as an advance ?” “4. Whether the defendant had right to enter into such contract with the plaintiff without consent of his son and daughter so also the family members ?”. 5. With regard to issue no. 3, the learned trial court was to decide as to whether the defendant had at all entered into any agreement with the plaintiff for which he received Rs.6,70,000/-as advance. In this regard, during cross-examination, D.W. 1 answered in the following manner to the suggestions given: “…… In Mumbai AmiyaKumar Sahu is the Karta of the family. He is also bearing the educational expenses of his children. It is not a fact that Amiya Kumar Sahu executed the deed of agreement for sale in favour of Ajit Kumar Sahu after obtaining consent from his wife and children since he had no alternative mood to obtain money for the educational expenses of his children. It is a fact that Amiya Kumar Sahu executed the deed of agreement for sale at Mumbai. I have got no personal knowledge regarding the execution of the deed of agreement for sale………” From the above statement, it appears that the D.W. 1 stated that he executed the deed of agreement for sale at Mumbai whereas the plaintiff’s specific case is that the agreement was executed at Jeypore in Odisha. The statement of D.W. 1 made prior to the said statement that he executed the agreement at Mumbai appears to be an out-come of confusion if the earlier sentence in the evidence is taken into consideration when he denied the execution of any agreement after obtaining consent from his wife and children, for want of legal necessity. The learned trial court should not have taken this confused statement of D.W. 1 into consideration for coming to the conclusion that the defendant entered into the alleged agreement with the plaintiff. Basing on the finding from the above statement that the defendant has executed the agreement in question, the learned trial court thereafter has proceeded to decide the issue no. Basing on the finding from the above statement that the defendant has executed the agreement in question, the learned trial court thereafter has proceeded to decide the issue no. 4 on the basis that the agreement was executed by the defendant in favour of the plaintiff. The issue no. 4 is with regard to the question as to whether the defendant had any right to enter into any contract with the plaintiff without consent of his son and daughter. While deciding this issue, the learned trial court proceeded to examine two important questions, i.e., as to whether the defendant entered into the alleged transaction as the ‘Karta” of the family and as to whether the transaction in question was for legal necessity ? The learned trial court has tendered its finding on the basis that the defendant is the ‘Karta’ of the family. This fact is not pleaded by the plaintiff in the plaint. The learned trial court, however, while observing the pleadings of the plaintiff, has erroneously observed that the defendant constituted a separate family and became the ‘Karta’ of the family. It has been further observed by him that since the defendant was in urgent need of money to meet the educational expenses of his son and daughter, he approached the plaintiff several times to sell the land. This refers to the pleading regarding legal necessity and it also appears that this finding is an error of record as no where in the plaint, the plaintiff has stated with regard to the legal necessity of the defendant. The plaintiff examined as P.W. 1 has not also whispered a word regarding the fact of legal necessity for executing the suit agreement. Rather, in the written statement in paragraph-7, the defendant has categorically stated that his son and daughter did not agree for entering into any transaction with the plaintiff. D.W. 1 has also categorically denied this suggestion made to him by the plaintiff to be the reasons for execution of the alleged agreement. Thus, the very basis of the findings of the learned trial court is erroneous. Regarding the ‘Kartaship’ of the defendant, the learned trial court, of course, rightly referred to paragraphs – 230 and 223 of Mulla Hindu Law to come to a conclusion that the lands in question are ancestral properties. Thus, the very basis of the findings of the learned trial court is erroneous. Regarding the ‘Kartaship’ of the defendant, the learned trial court, of course, rightly referred to paragraphs – 230 and 223 of Mulla Hindu Law to come to a conclusion that the lands in question are ancestral properties. As has been indicated earlier, there is no whisper in the pleadings or evidence of the plaintiff regarding any legal necessity for the suit transaction. “Legal necessity” is a question which is to be specifically pleaded and proved by the person, who claims such legal necessity to be the cause for the transaction in question. The learned trail court, while referring to the fact that the son and daughter of the defendant were studying at USA and the defendant was living at Mumbai, has drawn an inference of legal necessity to be existing for execution of the suit agreement without noting that there was absence of pleading in that regard. He has, in fact, though there was no such pleading, shifted the burden on the defendant to disprove the factum of legal necessity. The learned trial court has also ignored the pleadings and evidence of the defendant to the effect that he immediately wanted to return the money he had received by way of drafts to the plaintiff, which is a piece of material, which goes a long way to disprove the fact of legal necessity for the transaction in question. 5. This Court in the case of Smt. Manohari Devi and others v. Choudhury Sibanava Das and others, AIR 1983 Orissa, 135 while dealing with the question as to on whom the burden lies to prove ‘legal necessity’, laid down that burden to prove the legal necessity is on the purchaser. Bona fide enquiry is to be made by the purchaser regarding the legal necessity before entering into the transaction. In the case of Bageshwari Prasad Duivedi v. Deopati Kuer and another, AIR 1961 Patna 416, the Patna High Court has held that in an agreement to grant permanent lease by a Karta, if legal necessity is not proved, no decree for specific performance can be granted. In the case of Bageshwari Prasad Duivedi v. Deopati Kuer and another, AIR 1961 Patna 416, the Patna High Court has held that in an agreement to grant permanent lease by a Karta, if legal necessity is not proved, no decree for specific performance can be granted. In the case of M. Veera Raghaviah v. M. China Veeriah and another, AIR 1975 A.P. 350 , while dealing with a similar question, the Andhra Pradesh High court held that where father and his sons constituted a joint family, contract by one of them to sell the whole property is not binding on others and specific performance cannot be granted as regards the shares of others. The learned trial court fell into error in finding that as there was obligation on the part of the defendant to maintain his family at Mumbai, there was legal necessity for the suit transaction in question. The admission of D.W. 1 that the defendant was the Karta of the family cannot be accepted for the purpose of the suit transaction as the said statement of D.W. 1 has been made on the basis that the defendant was looking after and maintaining his family at Mumbai. A person may be a Karta of the joint family and may be maintaining the family. But dealing with joint family property as the Karta of the said family should be preceded with legal necessity for the joint family. This factum of legal necessity has not been proved by the plaintiff and the learned trial court wrongly shifted the burden of proof to the defendant. 6. The learned trial court in the impugned judgment proceeded to examine as to whether the purported suit transaction can be resisted on the ground that the same having been entered into without the consent of the other members of the joint family can be held to be a valid transaction or not ? In this connection, the learned trial court placed reliance on the decision in the case of Sunil Kumar and another v. Ram Prakash and others, AIR 1988 SC 576 to come to a conclusion that the defendant cannot resist the move of the plaintiff as the son and the daughter of the defendant have their remedy by filing a suit to avoid the transaction over their share later. This decision, however, is applicable to a proved fact of Kartaship and established fact of legal necessity. The case before the Hon’ble Supreme Court arose out of a suit for permanent injunction simplicitor. The said suit was filed by a son against his father for a decree restraining him permanently to transfer the joint family property in pursuance of an agreement for sale executed by the father. In such context, the Hon’ble Supreme Court came to the conclusion that the Manager of the joint Hindu joint family cannot be restrained permanently from alienating the property even when there is legal necessity to do so. The facts further indicate that in the said case the father entered into the contract in question terming the property to be his exclusive property. The question as to whether the property was exclusive or joint family property was also in dispute. Thus, in the circumstances of the said case, the Hon’ble apex Court came to the conclusion that in such a situation, a simple suit for permanent injunction is not maintainable and the father cannot be restrained from alienating the property, in a simple suit for permanent injunction specially when it was a proved case of Kartaship and legal necessity. It is revealed from the fact of the said case that prior to the suit filed by the plaintiff-respondent, there was already a decree existing against the father for specific performance of contract. The facts in the present case being totally different, the said ratio is not applicable to the facts of the present case and the learned trial court wrongly placed reliance on the ratio of the said decision without noting the distinctive features in the facts of the said case. (emphasis supplied) 7. In view of my above findings, it is seen that the learned trial court has erred in both fact and law in decreeing the suit of the plaintiff and in the facts of the present case, no decree for specific performance of contract could have been passed on the basis of the alleged agreement for sale. 8. In the result, the judgment and decree dated 17.5.2003 and 26.6.2003 respectively passed by the learned trial court in Civil Suit No. 8 of 2002 is set aside and the said suit stands dismissed. The appeal is accordingly allowed, but in the circumstances without cost. Appeal allowed.