JUDGMENT A.B. CHAUDHARI, J. 1. Being aggrieved by the judgment and decree dated 26th August, 1992 in Civil Appeal No. 512 of 1986 passed by 7th Additional District Judge, Nasik by which the appeal was partly allowed and the decree for execution of sale deed in favour of the appellants plaintiffs in Special Civil Suit No. 63 of 1982 passed on 27th June, 1986 by Joint Civil Judge, Senior Division, Nasik was modified only to the extent of 1/5th share of deceased Ramchandra Tukaram Kasbe, the present Appeal was filed by the partly unsuccessful plaintiffs. The facts of the case are as follows: 2. The appellants plaintiffs who are the original plaintiffs filed Special Civil Suit No. 63 of 1982 and stated that the suit land Gut No. 368 admeasuring 4H 69.4R belonging to the defendant Ramchandra Tukaram Kasbe was agreed to be sold to the plaintiffs by him for a total consideration of Rs. 24,200/. The defendant Ramchandra had mortgaged the land with Nasik District Coop. Land Development Bank for sinking the well in Gut No. 109 in the year 1970 but he could not repay the loan and the bank had threatened to put his land to auction in the year 1981. Respondent defendant had no other option than to dispose of the suit property to repay the loan and that is why the suit land was put to sale. Upon negotiations, the price was fixed and earnest amount of Rs. 7300/was agreed to be paid and the agreement was executed on 1st August, 1981. The possession of the suit land was delivered pursuant to the said agreement dated 1st August 1981 to the appellants plaintiffs along with the standing crops. The sale deed was to be executed within one year by making payment of the entire loan outstanding amount to the bank. The respondent Ramchandra was Karta of Hindu Joint Family and had agreed to sell the suit land for the benefit of Joint Family. The plaintiffs paid Rs. 7300/to defendant and deposited Rs. 5000.65ps. with the Land Development Bank on 3.9.80 towards the outstanding loan. The plaintiffs were always ready and willing to perform their part of the contract but defendant changed his mind and did not perform his part of the contract and avoided to execute the sale deed. The plaintiffs paid Rs. 7300/to defendant and deposited Rs. 5000.65ps. with the Land Development Bank on 3.9.80 towards the outstanding loan. The plaintiffs were always ready and willing to perform their part of the contract but defendant changed his mind and did not perform his part of the contract and avoided to execute the sale deed. Not only that the defendant refused to furnish information as to the outstanding loan amount and finally refused to execute the sale deed in the month of March 1982. The appellants then came to know that defendant had in fact repaid the whole amount to the bank and thus, committed breach of the contract and it was essential to file the suit in question. The suit was resisted by the defendant by filing written statement at Ex.16. The defendant admitted about the loan on the suit property and the insistence of the bank for repayment. He also admitted execution of the document of agreement dt.1st August, 1981 in favour of the plaintiffs. But he further submitted that he was in financial difficulty due to the pressure from the bank to repay the loan amount and therefore, asked the plaintiffs for some loan amount who agreed to give loan due to friendly relations but the plaintiffs wanted the document by way of security for loan which was executed by Ramchandra alone. The transaction was thus, a loan transaction not to be acted upon and the document was to be destroyed. The defendant respondent being in disturbed state of mind executed the agreement Ex.51 due to helplessness. He denied the delivery of possession so also the receipt of amount of Rs. 7300/and that the amount of Rs. 5000/was to be deposited in the bank on the next working day after the agreement and the amount of Rs. 2300/was to be paid to Ambadas Ramu Ugle. The amount of Rs. 2300/was not paid to Ambadas and the plaintiffs straightway deposited Rs. 5000/out of Rs. 7300/in the bank. The payment of Rs. 5000/alleged by the plaintiff was the same amount and not separate from the amount of Rs. 7300/. The plaintiffs did not pay the amount of the entire amount of the loan in the bank and it was the defendant who was required to dispose of his other field property and make payment therefrom of the entire loan amount on 7th April, 1982. 7300/. The plaintiffs did not pay the amount of the entire amount of the loan in the bank and it was the defendant who was required to dispose of his other field property and make payment therefrom of the entire loan amount on 7th April, 1982. It was thus the plaintiffs who committed the breach of contract and therefore he made counter claim. The defendant also took a stand in the written statement that the suit property was ancestral property and could not have been agreed to be sold by him alone since he had only 1/5th share in the suit property. The transaction was merely a loan transaction and the appellants plaintiffs fully knew about the joint nature of the property. He therefore, resisted the decree for specific performance. The trial Judge in all framed 29 issues and finally decreed the suit for specific performance of the contract in respect of entire suit property, by judgment and decree dt.27th June, 1986. On appeal, the learned lower appellate court partly allowed defendant's appeal and granted decree in favour of the plaintiffs to the extent only of 1/5th share only of the defendant Ramchandra. Being aggrieved by the said decree of the lower appellate court, the instant Second Appeal was filed by the plaintiffs in this court. ARGUMENTS: 3. In support of the appeal, the learned counsel for the appellant made the following submissions: (i) That the lower appellate court committed error in holding that the respondent Ramchandra had no authority to agree to sell the suit property in entirety to the appellants plaintiffs. Even from the case pleaded by the respondent defendant and the evidence on record, it was clearly established that the suit property was agreed to be sold for the legal necessity namely the financial pressure from the land development bank which had been pressurizing him for making repayment of the loan that was advanced. (ii) Though the legal necessity for sale of the suit property to the appellants plaintiffs was duly established the lower appellate court erred in refusing the decree for the entire suit property. The deceased Ramchandra acted as a 'karta' of the family and for saving the suit land from being auctioned by the land development bank he agreed to sell the suit property to the appellants and that was obviously for the benefit of the family and the estate. The deceased Ramchandra acted as a 'karta' of the family and for saving the suit land from being auctioned by the land development bank he agreed to sell the suit property to the appellants and that was obviously for the benefit of the family and the estate. (iii) In the light of the several decisions and the legal position that even if the other members/coparceners in the joint hindu family are adults, the Manager or the Karta of the family is entitled to sell the suit property for the benefit of the family or for the benefit of the estate. In the instant case the need was writ large namely, to save the suit property and therefore the agreement Ex.51 by Ramchandra was executed acting as Karta of the family. The lower appellate court committed a grave error in ignoring the said aspect. Not only that the two adult sons of Ramchandra in fact had signed the agreement as attesting witness and therefore their consent for sale must be inferred. The lower appellate court however ignored all these aspects of the matter. It was only the third son Yashwant who had not signed the agreement and the wife of Ramchandra but then that would make no difference if Ramchandra had decided to sell the suit property with the consent of the other two sons and would bind the family. (iv) The lower appellate court committed an error in reversing the finding of fact and the decree made by the trial court which held that the defendant Ramchandra and his sons had deliberately with a view to thwart the claim of the appellant issued public notice dated 29th March, 1982 Ex.67 and had instituted a Special C.S. No. 56 of 1984 for partition. That was a ploy to defeat the claim of the appellant since the said Civil Suit No. 56 of 1984 was ultimately dismissed on 20th January, 1992. Thus, defendant Ramchandra and his sons had changed their mind and decided to breach the agreement by taking the appellants plaintiffs for a ride. (v) Though period of execution of sale as per Ex.51 was one year the respondent did not wait for the said period but deliberately made repayment of the entire loan amount themselves in order to defeat the legal remedy of the appellants. (v) Though period of execution of sale as per Ex.51 was one year the respondent did not wait for the said period but deliberately made repayment of the entire loan amount themselves in order to defeat the legal remedy of the appellants. (vi) The lower appellate court did not frame any point for determination in the impugned judgment contrary to the procedure prescribed by Civil Procedure code and therefore, this court may think of making remand order to the lower appellate court. (vii) Continuing the submissions the learned counsel for the appellants submitted that the lower appellate court committed an error restricting the decree for specific performance only to the extent of 1/5th share of defendant Ramchandra ignoring the fact that under Ex.51 the entire suit property was agreed to be sold due to legal necessity. (viii) The lower appellate court could not make the payment of additional compensation which the appellants are even now ready to offer in the light of the various decisions of the Apex Court. (ix) The lower appellate court committed an error in ignoring the fact that the appellants were found in possession of the suit property and paid substantial amount. (x) The lower appellate court erred in not applying the law correctly as to the alienation of the property acting as Karta of the family for the benefit of the estate or for the benefit of the family. 4. Counsel for the appellants relied on the following decisions. 1. Satya Jain (Dead) through LRs. and others vs. Anis Ahmed Rushdie (Dead) through LRs. and others reported in (2013) 8 SCC 131 2. Shankarlal Ramprasad Ladha (died by L.Rs. ) v. Vasant Chandidasrao Deshmukh reported in 2009 (2) ALL MR 93 3. Ramnath Rambhau Gujar (dead through LR.s) v. Shamrao Gopal Petkar & ORs. reported in 2010(5) ALL MR 1 4. Ramchandra Chunilal Dagad (deceased by LR.s) & Anr. v. Vasant Bansi Somwanshi & ORs. reported in 2010 (5) ALL MR 218 5. The Designers Coop. Hsg.Soc. vs. Udhav s/o. Murlidhar Rasne & ORs. reported in 2011 (1) ALL MR 346 6. Jagannath Rangnath Chavan v. Suman Sahebrao Ghawte & ORs. reported in 2013 (6) BCR 62 7. Brij Narain vs. Mangla Prasad and Others reported in 1923 Indian Appeals 129 8. Smt.Rani and another v. Smt.Santa Bala Debnath and others reported in AIR 11971 SC 1028 9. reported in 2011 (1) ALL MR 346 6. Jagannath Rangnath Chavan v. Suman Sahebrao Ghawte & ORs. reported in 2013 (6) BCR 62 7. Brij Narain vs. Mangla Prasad and Others reported in 1923 Indian Appeals 129 8. Smt.Rani and another v. Smt.Santa Bala Debnath and others reported in AIR 11971 SC 1028 9. T.D.Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments, Madras reported in AIR 1972 SC 1716 10. Gangadharan v. Janardhana Mallan and others reported in AIR 1996 SC 2127 11. Mukesh Kumar and others v. Col.Harbans Waraiah and others reported in AIR 2000 SC 172 12. Nirmala Anand v. Advent Corporation (P) Ltd. And others reported in AIR 2002 SC 3396 13. K. Prakash vs. B.R.Sampath Kumar unreported judgment of Supreme Court in Civil Appeal No. 9047 of 2014 14. P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi AIR 2007 SC 1256 15. P.C. Varghese v. Devaki Amma Balambika Devi AIR 2006 SC 145 16. P.D'souza v. Shondrilo Naidu AIR 2004 SC 4472 17. Gobind Ram v. Gian Chand AIR 2000 SC 3106 18. S.V.R.Mudaliar v. Rajabu F. Buhari AIR 1995 SC 1607 19. Kuldip Gandotra v. Shailendra Nath Endlay AIR 2007 DELHI 1 20. Dalip Singh v. Ram Nath and another AIR 2002 HIMACHAL PRADESH 106 21. R Nagpal v Deviram AIR 2002 HIMACHAL PRADESH 166 22. N.Satyanarayana v. Vedprakash Dusaj and others AIR 2003 ANDHRA PRADESH 385 23. Kochuthampi Rawther Hassankutty v. Peerumuhammed Puthumaliyar Rawther AIR 2000 KERALA 17 24. Babulal Agrawal v. Smt.Jyoti Shrivastava AIR 2000 MADHYA PRADESH 83 25. K.Venkoji Rao v. M.Abdul Khuddur Kureshi 26. H.P.Pyarejan v. Dasappa 2006(3) BCR 668 (i) On the other hand, Mr. Sathe the learned counsel for the respondent invited my attention to the document of agreement Ex.51 and took the court through various clauses therein. He submitted that the property is admittedly joint family property in which there are five shareholders. Three sons of the deceased defendant Ramchandra were major who were the coparceners in the Suit estate. Ex.51 no where shows any recital that Ramchandra was specifically authorized by all the adult sons who were the coparceners to sell the estate for whatever purpose. He submitted that the property is admittedly joint family property in which there are five shareholders. Three sons of the deceased defendant Ramchandra were major who were the coparceners in the Suit estate. Ex.51 no where shows any recital that Ramchandra was specifically authorized by all the adult sons who were the coparceners to sell the estate for whatever purpose. The deceased respondent therefore did not act as a Karta on behalf of the joint family for executing Ex.51 but on his own he acted limited to his wisdom to obtain some loan amount from the plaintiffs appellants and mortgaged the suit property by way of security for loan under Ex.51. (ii) He then submitted that the attesting witnesses who are his sons can in no case be termed as a consenting party for executing the agreement sale agreement Ex.51. Had it been so, they would have signed with their father Ramchandra as persons agreeing to sell the suit property. According to Mr. Sathe the fact that the appellants also did not insist for their signature along with Ramchandra but were satisfied with their signature as attesting witnesses is enough to indicate that even the appellants were aware about the nature of transaction under the agreement as the one for lending loan. (iii) The learned counsel for the respondent then argued that the lower appellate court has recorded the findings of facts and has rightly found that the deceased Ramchandra/defendant had no authority to act for the joint family to agree to sell the suit property under Ex.51 which was admittedly the joint family property. (iv) Mr. Sathe then argued that issuance of public notice by Ex.67 first and then filing of the Special Civil Suit No. 56 of 1984 by sons for partition was an indicator that the sons were not at all agreeable to the sale proposed by Ramchandra, their father under Ex.51. The counsel for the respondent submitted that as a matter of fact the respondents had decided to sell another property namely Gut No. 55 for repayment of loan and which was actually sold on 15th March, 1982 for Rs. 40,000/from which they repaid the entire loan amount of the bank and released the suit property. The counsel for the respondent submitted that as a matter of fact the respondents had decided to sell another property namely Gut No. 55 for repayment of loan and which was actually sold on 15th March, 1982 for Rs. 40,000/from which they repaid the entire loan amount of the bank and released the suit property. This conduct on the part of the respondent clearly indicated that by no means the respondent wanted to sell the suit property much less under the agreement Ex.51 to the appellants. (v) The learned counsel for the respondent submitted that right from the beginning the respondent had specifically stated and in particular in reply to the notice sent by the appellants that there was no other property left for the family except for the suit property and therefore hardship would be caused to the respondent and plaintiff would have unfair advantage over the defendant. (vi) The lower appellate court therefore, recorded the finding of fact and found that the agreement Ex.51 could be enforced only to the extent of the share of the deceased Ramchandra and that is why it made decree by giving some relief to the appellants plaintiffs. The discretion exercised by the lower appellate court in the matter of decree for specific performance of contract cannot be disturbed or reexamined or reanalyzed in the second appellate jurisdiction. (vii) The loan amount in total was Rs. 14588/while under clause 12 of the agreement the appellant was supposed to make payment of the entire loan amount but admittedly the entire loan amount was not paid by the appellants and on the contrary, the appellants remained satisfied with making payment of some amount. (viii) Counsel for the respondent submitted that even the amount that was paid in the bank was only Rs. 5000 and nothing more than against the total amount of loan liability of Rs. 14300/. Counsel for the respondent relied on the following decisions. He finally prayed for dismissal of the Appeal. 5. Counsel for the respondent relied on the following decisions: 1. Dharmarao Sidhappa Shetgar (D) L.Rs. v. Gopal Shriniwas Shirsikar and ORs. reported in AIR 2006 BOMBAY 228 2. Nathu Lal and others vs. Mt.Gomti and others reported in AIR 1940 Privy Council 160 3. Loon Karan Sethia etc. v. Mr. Ivan E. John and others reported in AIR 1977 SC 336 4. Dharmarao Sidhappa Shetgar (D) L.Rs. v. Gopal Shriniwas Shirsikar and ORs. reported in AIR 2006 BOMBAY 228 2. Nathu Lal and others vs. Mt.Gomti and others reported in AIR 1940 Privy Council 160 3. Loon Karan Sethia etc. v. Mr. Ivan E. John and others reported in AIR 1977 SC 336 4. S.Perumal Reddiar v. Bank of Baroda and others reported in AIR 1981 Madras 180 5. Chamela Ram vs. Balwant Singh and others reported in 1999 CJ (P & H) 126 6. Arumugam v. M.S.Narasaiah reported in AIR 1998 MADRAS 67 6. Upon perusal of the judgment of the lower appellate court and as argued by the counsel for both the parties it is seen that the lower appellate court failed to frame the points for determination but went ahead in writing the judgment. This court therefore at the beginning asked the counsel for rival parties to address the court on facts as well on evidence and the questions of law since the litigation pertains to the year 1982 and this court thought that it would be unjust to send the appeal for hearing before the lower appellate court. 7. Counsel for the parties therefore agreed to advance arguments on facts and law both and this court in exercise of power under section 103 of the Code of Civil Procedure accordingly decided to to ahead with the instant Second Appeal for making the decision on merits thereon rather than remanding the appeal to the lower appellate court. CONSIDERATION 8. Upon hearing the learned counsel for the rival parties and upon perusal of the entire record and judgments and the reasons recorded by the courts below at length, I reframe the following substantial questions of law which arise for my consideration: Questions (a) Whether the lower appellate court committed an error in holding that the deceased Ramchandra had no authority to act as a Karta on behalf of the joint family and execute the agreement of sale Ex.51 for legal necessity in favour of the appellants plaintiffs which would bind the members of the family including the sons and his wife? Answer – No (b) Whether the agreement Ex.51 executed by the deceased Ramchandra was executed with the express or implied consent of all the members of the Joint Family, in that the two sons of defendant Ramchandra had signed as attesting witness on Ex.51 and one son and his wife had not signed the same? Answer – No (c) Whether the lower appellate court committed an error in not making the decree for specific performance of the contract in entirety i.e. for the entire suit field but restricting the same only to the extent of 1/5th share of the deceased Ramchandra? Answer No (d) Whether the offer made by the appellants to make the payment of additional compensation to the respondent for decree for specific performance of contract in respect of the entire suit estate can be accepted? Answer No (e) What order on Crossobjection (ST). No. 22235 of 2009 ? Answer – (i) Second Appeal is dismissed. (ii) Crossobjection is dismissed. 9. As to question nos.(a) and (b), the following facts are not in dispute: (I) That the defendant Ramchandra the deceased was the father who had three sons and wife and admittedly the suit property was the joint family property held by him with his children and wife. The three sons were adults and admittedly had interest in the undivided suit property. Ramchandra had obtained loan on the suit property from Nasik District Land Development Bank for sinking well but suffered loss and could not repay the loan. As on the date of the agreement of sale Ex.51 dated 1st August, 1981 the outstanding loan amount against him was Rs. 14300/. It is the case of the appellants that Ramchandra agreed to sell the suit property to them (plaintiffs) for clearing the entire loan liability over the suit property and that is why he entered into an agreement of sale with the appellants and he alone executed the agreement Ex.51. Clause 5 of the Ex.51 shows that appellants had agreed to make payment of the entire outstanding loan. Ramchandra alone had put his thumb impression on the agreement while his two sons Dattu and Shankar had signed as attesting witness to the agreement while the third son Yeshwant had not signed the agreement so also Ramchandra's wife. (II) Clause 4 of the agreement in all details show the nature of the property as the ancestral property. Ramchandra alone had put his thumb impression on the agreement while his two sons Dattu and Shankar had signed as attesting witness to the agreement while the third son Yeshwant had not signed the agreement so also Ramchandra's wife. (II) Clause 4 of the agreement in all details show the nature of the property as the ancestral property. Clause 12 of the agreement shows the names of three adult sons Dattu, Shankar and Yashwant and the last sentence therein shows that signatures of the other adult members of the family will be obtained on the sale deed. There is nothing in the agreement Ex.51 to show that though it was drafted by an Advocate with 15 clauses and 5 pages as to the amount of total loan liability with interest on the date of agreement of sale. Clause 2 of the agreement shows that the amount of Rs. 5000/was written later on in hand writing as Rs. 7300/and payment to be made in the bank again was written in hand writing as against the entire agreement which was typewritten. Further clause 12 shows that money was required for expenditure on agriculture and family maintenance but again the words 'for agreement of the loan of the bank' were put in hand writing. It is thus clear that Ex.51 does not support the case of the appellants that they knew about the entire loan liability of Rs. 14300/on the date of the agreement before agreeing to purchase the suit property for discharging the loan liability of the defendant. The appellants remain satisfied, or to put in other words did not insist for signatures of his two sons Dattu and Shankar along with Ramchandra as the persons agreeing to sell the joint family property, with their signatures as attesting witnesses only when the appellants were fully aware that the property was ancestral property and was held by defendant Ramchandra jointly with his adult sons and his wife. These taletelling documentary evidence on the contrary shows that the appellants knew that the two sons Dattu and Shankar and the third son Yashwant did not at all want to sell the suit property under Ex.51. These taletelling documentary evidence on the contrary shows that the appellants knew that the two sons Dattu and Shankar and the third son Yashwant did not at all want to sell the suit property under Ex.51. In other words the appellants can be posted with the knowledge that Ramchandra and his family members with adult sons did not have any deliberations jointly nor was any unanimous decision by them to agree to sell the suit property for the legal necessity to the appellants by Ex.51. The appellants can also be posted with further knowledge that there was no authority in the defendant Ramchandra to agree to sell the suit property under Ex.51. The appellants did not at all explain as to why the appellants did not insist for signatures of Dattu and Shankar on the agreement rather than having them as attesting witnesses on Ex.51, which they learned that the suit property was joint family property. (III) It is then seen from the record that the amount of Rs. 5000/was paid by the appellants on 3rd September, 1981 to the bank directly and the receipts are duly proved on record. But then there is no evidence on record to show that the said amount of Rs. 5000/deposited with the bank directly was besides the amount of Rs. 7300/or out of Rs. 7300/only. The only inference in the light of the above facts and evidence that can be drawn is that the appellants had paid the amount under the agreement to the defendant Ramchandra by way of loan and obtained the agreement Ex.51 from him and none of the other coparceners i.e. three sons had agreed to sell the suit property and that on the contrary even those two sons did not want to sign the agreement nor wanted to sell the suit property. It must therefore be held that the agreement Ex.51 was unilaterally executed by defendant Ramchandra without any authority from the other adult coparceners so as to bind them. The submission made by the learned counsel for the appellants that respondent acting as Karta of the family was entitled to agree to sell the suit property to the appellants for legal necessity in order to save the suit field from being auctioned in view of the pressure from the bank does not appeal to me. The submission made by the learned counsel for the appellants that respondent acting as Karta of the family was entitled to agree to sell the suit property to the appellants for legal necessity in order to save the suit field from being auctioned in view of the pressure from the bank does not appeal to me. The authority in the Karta would not be absolute particularly when as pointed out earlier except Ramchandra none agreed to sell the suit property and on the contrary there was a resistance from the sons. The fact that there was resistance from them has been discussed by the lower appellate court and instead of repeating the reasons it will be suffice if I quote paragraph 3 from the lower appellate court judgment which reads thus: “3. The defendants-appellants have submitted that at the time of execution of agreement for sale Exh.51 no doubt he had stated that he was acting as karta of the family at that time, however it is specifically stated in clause 12 of agreement to sale Exh.51 that he would obtain the signature of the adult members of his family upon the agreement to sale and in case the saledeed is executed, the signatures of adult members of said family would be obtained on such saledeed, so as to bind all the adult members of his family for the sale of the disputed land. The suit has been filed in the court on 14.4.1982. The agreement to sale Exh.51 has been executed on 1st September, 1981 and prior to filing of the present suit, adult members of the family of the defendant has given a public notice in daily newspaper 'Gavakari' dated 29.3.1982 which is filed under Exh.67 and the said public notice is dated 2431982 stating that disputed land which is situated at Wadgaon, Tal. and Dist.Nasik i.e. Gat No. 368 are 4 Hectors, 06 Ares, land revenue of Rs. 312Ps. they have shares in the above stated stipulated land of the narrators of the public notice namely Yeshwant Ramchandra Kasbe and others and said Yeshwant Kasbe had made intention to separate from the joint family property by such notice. and Dist.Nasik i.e. Gat No. 368 are 4 Hectors, 06 Ares, land revenue of Rs. 312Ps. they have shares in the above stated stipulated land of the narrators of the public notice namely Yeshwant Ramchandra Kasbe and others and said Yeshwant Kasbe had made intention to separate from the joint family property by such notice. Such notice is also explicitly stated in clause No. 12 of the agreement to sale Exh.51 to carry out the said intention to separate, said Yeshwant Ramchandra Kasbe filed a suit for partition and separate possession, that is at Exh.103. It is stated that said suit has been submitted on 2011982.” (IV) In the case of Balmukand v. Kamla Wati and others reported in AIR 1964 SC 1385 while citing the judgment of Patna High Court in the case of Sital Prasad Singh and others v. Ajablal Mander and others reported in AIR 1939 Patna 370, the Supreme Court stated thus in paragraph 7, 9 and 10 as follows: “7. The next case is Sital Prasad Singh v. Ajablal Mander, ILR 18 Pat 306: (AIR 1939 Pat 370). That was a case in which one of the questions which arose for consideration was the power of a manager to alienate part of the joint family property for the acquisition of new property. In that case also the test applied to the transaction entered into by a manager of a joint Hindu family was held to be the same, that is, whether the transaction was one into which a prudent owner would enter in the ordinary course of management in order to benefit the estate. Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. In the course of his judgment Harries C.J. observed at p. 311 (of ILR Pat): (at p.372 of AIR): "The karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu lawgivers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The Hindu lawgivers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct." After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed : "In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate." These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice. The other Judge who was a party to that decision, Manoharlal J., took more or less the same view. (9) Thus, as we have already stated, 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 fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into. We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiff's claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff's claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation. (10) In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.” (V) In my opinion, the above legal position is apt in the fact situation present in this case. It is anxious to note that though the appellants fully knew that the suit property was ancestral property and three sons and wife of Ramchandra had interest therein and when it was the case of the appellants that the property was sold out for legal necessity none of the sons were even joined as a party to the suit which is an indicator of the fact that the appellants very well knew that he would not be able to make any claim against all the three sons and would be able to claim only against the defendant Ramchandra, who alone was the defendant. To sum up question nos.(a) and (b) therefore will have to be answered in the negative. 10. As to question nos.(c): Admittedly, the respondent has not put to challenge the judgment and decree made by the lower appellate court in part i.e. to the extent of 1/5th share of Ramchandra and thus said part of the decree has become final. In view of my answer to question nos.(a) and (b) the lower appellate court was right in refusing the decree for specific performance of contract of the entire suit property. Further in view of the fact that the respondent did not put to challenge the decree made by the lower appellate court in part in favour of the appellants, question No. (c) will have to be answered in the negative. 11. As to question No. (d): It is true that the appellants have made an offer to make payment of additional compensation to the respondent for asking for a decree for specific performance for the entire estate. However, since I have answered question nos.(a), (b) and (c) in the negative and since the other members of the family of Ramchandra could not be compelled to execute the sale deed, this question also will have to be answered in the negative. 12. As to question No. (e): In view of the above answers to question nos.(a), (b) and (c), the Crossobjection will have to be dismissed. 13. Various judgments cited by the learned counsel for the parties before me in the facts of the present case will have no application and hence, it is not necessary for me to consider each and every judgment. To sum up the following order is passed. ORDER (i) Second Appeal No. 563 of 1992 is dismissed. (ii) Cross Objection (ST). No. 22235 of 2009 is dismissed. (iii) No order as to costs. (iv) The learned counsel for the appellants submits that the interim order is operating and same may be continued for another eight weeks. Request is opposed by Mr. Sathe the learned counsel for the respondent. However, I continue interim order for another eight weeks.