JUDGMENT S.S. Dhavan. J.
1. This is a plaintiff's second appeal against concurrent decisions of the courts below dismissing their suit for the specific performance of a contract for the reconveyance of certain plots of land to them. The original parties to the contract are not principal parties in the suit and it is, therefore, necessary to relate the facts of the case in some detail. On 22-1-1936 the plaintiffs' ancestors Chaudhry Madho Singh and Chaudhry Kanwaj Singh entered into a transaction of sale and agreement to resell by means of two registered documents with four persons, Tola Ram, Gangi Mak, Ram Chandra and Snyamlal. By the first deed Madho Singh and Kanwal Singh sold certain plots of land to the vendees for Rs. 2500/- and by the second the vendees agreed to reconvey the same property to the vendors on condition that they received back the sale price within ten years. The four vendees are relations, Ram Chandra and Shyam Lal being brothers and the other two their uncles. Shyam Lal being a minor the agreement to re-sell was signed by Ram Chandra on behalf of both. Tota Ram did not sign the agreement which was executed on his behalf by his son Pyare Lal. Gangi Mal executed it on his own behalf. Both documents were registered on the same day between the hours of noon and 1 p.m. The sale deed bears the serial No. 106 and the agreement of reconveyance No. 107 in the office of the Registrar. The option to re-purchase the property was given to vendors or their heirs, and it was also stipulated that the obligation to re-transfer the property bound the purchasers as well as their heirs.
2. On 1-2-1937 one Misri Lal filed a suit for pre-emption. in the court of Munsif, Bulandshahr. The suit was decreecf and the decree was ultimately confirmed by the High Court in second appeal with some modifications with regard to the sale price. The decree of this Court referred to the agreement for re-sale at some length, (the Importance of this fact will become clear presently). After the decree for preemption, mutation was effected in favour of the preemptors. The mutation order of the Revenue Court referred to the sale deed and the agreement for repurchase. After acquiring the property, the preemptor Misri Lal sold about half of it to two persons, Shishpal Singh and. Bhura Singh.
3. On 18-1-1946 the present suit to enforce the agreement for re-sale was filed by the plaintiffs Ganga Singn and Balbir Singh who are the heirs of the original vendors of 1936. The principal defendants are Misri Lal the pre-emptor and his two transferees Shishpal Singh and Bhura Singh. The pro forma defendants are the tour original purchasers of the property, Tota Ram, Ganga Mal, Ram Chander and Shyam Lal. They have not contested the suit.
4. The suit was resisted by the preemptor and the two transferees and a number of pleas were raised In defence. It was contended that there was no agreement and that the agreement to resell the property was made (sic-not?) by the original purchasers and the plaintiffs story was false. This plea was rejected below and has not been raised in this appeal. Alternatively, it was contended that this agreement was not binding on the pre-emptor and his transferees. It was also contended that Piarey Lal, one of the parties to the agreement for resale, was not the Karta of the family to which he belonged and had no power to execute the agreement on behalf of his branch. It was also contended that Ram Chandra, another signatory to the agreement had no power to bind Shyam Lal his minor brother.
5. The defence of the preemptor requires detailed notice. He pleaded that he was not bound by the agreement of resale made by the original purchasers, as he derived his title from a decree of the court and, therefore, any agreement for re-sale did not affect him as he was not the legal representative of the purchasers. The preemptor contended that the sale and the agreement to resell were not parts of the same transaction but two agreements independent of each other. He also pleaded that the present suit was barred by the principle of res judicata as a result of the findings of the court in the preemption suit.
6. The trial court held that the sale and the agreement to resell were independent transactions. It further held that of the four original purchasers only Gangi Mal was bound by the agreement to re-sell but not the others. It was not binding on Tota Ram, as Piarey Lal had no authority to execute it on his behalf. It was not binding on Shyam Lal as he was a minor and his brother Ram Chandra had no authority to execute it on his behalf, it also held that the preemptor was not a transferee of the original vendees and was not bound by any agreement for re-sale which they might have made after the completion of the sale. It further held that the suit was barred by res judicata, as in the preemption suit the vendor could have raised the plea that the right of preemption was subject to the right of the vendor for reconveyance of the property to them. As they did not take this plea they were barred by Section 11 of the C. P. C. from raising it in the present suit. In view of these findings, it dismissed the suit with costs.
7. In appeal the learned Judge confirmed the finding of the trial court that the sale and the agreement to re-sell were different and independent transactions and that the preemptor was not bound by the latter. He also concurred with the view of the trial court that the agreement to reconvey was not binding on Tota Ram nor on Shyam Lal who was a minor on the date of the original transactions. He did not agree with the trial court that the decision in the preemption suit operated as res judicata in the present suit, but in view of its other findings, he confirmed the decision of the learned Munsjf and dismissed the suit with costs. Aggrieved by these two decisions the plaintiffs have now come to this Court in second appeal.
8. Mr. Ambika Prasad learned counsel for the appellants urged the following main arguments in support of this appeal. First, the sale and the agreement to re-sell were parts of a single transaction and not two independent agreements. Secondly, the agreement to re-sell was binding on the' preemptor and his transferees, as the right or the plaintiffs to enforce the agreement was not affected by any act of the preemptor subsequent to the agreement. Thirdly, nothing in the judgment of this Court in the preemption suit operates as res judicata in the present suit. Lastly, in any case, the suit for specific performance could not be dismissed against Gangi and Ram Chandra and, therefore, the preemptor is bound by the agreement to the extent that he was substituted for these two persons.
9. At the outset, Mr. P.C. Gautam, learned counsel for the respondents raised an objection against the maintainability of the present suit which, he contended, must be dismissed in view of the provisions of the U. P. Z. A. and L. R. Act and the consequent vesting of the property in dispute in the State. Learned counsel pointed out mat this objection could not have been raised before the courts below as that Act had not come into force at the time. 8ut he contended that after the passing of the Act the legal rights and obligations of the parties have been altered and the contract for re-sale has become impossible of performance. Learned counsel for the appellants conceded that the appellants (sic -- respondents?) were entitled to raise this point and the Court is bound to consider the altered position of the parties as a result of any new legislation. It is, therefore, obvious that if the so-called preliminary objection succeeds, the plaintiffs' suit must fail and it will not be necessary to consider any other question in this appeal. I shall, therefore, consider this objection first
10. For the purpose of this argument Mr. Gautam contended that the agreement to resell the property has become impossible of performance because of the vesting of zamindari in the State under the Z. A. and L. R. Act. Learned counsel pointed out that the subject-matter of the sale and the agreement to sell was Zamindari property the proprietary rights of the preemptor and his transferees in the land in dispute having vested in the State, these rights were extinguished and there is nothing left to reconvey to the heirs of the vendors. Counsel invoked the doctrine of frustration of contract by operation of the law. On the other hand, it was argued by Mr. Ambika Prasad on behalf of the appellants that the passing of the U. P. I. A. and L. R. Act has no effect on the obligations of the defendants 1o reconvey the property in dispute. Mr. Ambika Prasacf conceded that a contract for the sale of zamindari property made before the passing of the Act cannot be carried out after the Act has come into force, but he pointed out that in the present case the plaintiffs are not seeking a re-conveyance of any zamindari property but of land which was the khudkasht of the original vendors and which, after the passing of the Act, was settled with the pre-emptor or his transferees as bhumidhars.
Learned counsel pointed out that the subject-matter of the sale and the agreement to re-sell was, with the exception of a small plot of banjar land, the khudkasht plots or grove land of the original vendors. All these plots, on the coming into force of the Z. A. and L. R. Act were automatically settled with the preemptor or his transferees as zamindars who became entitled to retain possession, of them as bhumidhars. Thus the land is still in the possession and control of the pre-emptor or his transferees and it is possible for them under the law to convey it to the plaintiffs. No question of impossibility arises.
11. The court asked both counsel how much of the property which was the subject-matter of the agreement of re-sale has been settled with the pre-emptor and his transferee under Section 18 of the Z. A. and L. R. Act, This matter could not be investigated in the courts below as it had not arisen there. Both the sale deed and the agreement for re-sale however make it clear that the property in dispute included grove-land and probably some khudkasht. Mr. Ambika Prasad for the appellant stated, on instructions, that ail the land in dispute with the exception of Nos. 476, 491 and 492 was the khudkasht of the original vendors at the time of the sale and have now been settled with the preemptor or his transferees, as the case may be who are in possession as bhumidhars. Mr. Gautam was asked whether he could refute this statement and he frankly stated that he could not. However, the counsel's lack of instructions on this point is not of much importance as learned counsel for the appellants has con ceded that, in the event of this appeal being allowed, the case shall have to be remanded to the lower court for as certaining how much of the property in dispute has vested in the State and how much is in possession of the principal defendants as bhumidhars.
12. The controversy raised by the preliminary objection centres round the change in the rights of proprietors in the same land which was settled with them as bhumidhars under Section 18 of the Z. A. and L. R. Act. More precisely, are the rights of a Bhumidar in the land settled with him substantially the same as his former rights as zamindar so that he can perform a contract for the sale of Khudkasht or grove land made before the Act, or, are the two rights so different that a contract for the sale of khudkasht or grove land made before the Act cannot be performed after the passing of the Act even if the same land is settled with the zamindar as the Bhumidhar there of?
13. All zamindari property vested in the State after the notification issued under Section 4 of the Act, and the parties are agreed that it is no longer possible for the defendants to reconvey any zamindari property which Vested in the State. Mr. Gautam contended that it is equally impossible for them to re-convey land which has not so vested and has been settled with the defendants as bhumidhars. He pointed out that the zamindars are no longer the owners of the tenure of this land but merely hold It under a Bhoomidhari. Counsel argued that there is a vital difference between ownership and bhumidhari tenure and contended that under the agreement of resale the original vendees had undertaken to reconvey zamindari property and nothing else. They had not undertaken to convey any new rights which they had acquired under the Act. Counsel conceded that these new rights were in the same land but argued that the agreement of resale did not apply to them as the parties could not possibly have contemplated at the time of the agreement that ownership rights in khudkasht or grove-land would be converted into a bhumidari tenure at some future date. Mr. Gautam contended that the agreement to resell had become literally impossible and, therefore, void under Section 56 of the Contract Act.
14. I heard learned counsel on both sides at considerable length on this point. The crucial issue in the controversy is whether the subject-matter of the agreement exists after the passing of the Z. A. and L. R. Act. I think it does exist. In Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, 1959 ALJ 229 : AIR 1959 All 179, a Full Bench of this Court held that under that Act the previous Sir and khudkasht rights of the zamindar as well as his rights in the groves have been allowed to continue to vast in the zamindar and only a new nomenclature has been given to those rights. Instead of being called Sir land, khudkasht land and the grove land of the erstwhile proprietor, they are now called his bhumidhari rights in the same lands. This view was taken in a case where the Court had to consider whether Bhumidhari rights acquired under Section 18 of the Z. A. and L. R. Act must be deemed to form part of a mortgaged property if the mortgage of khudkasht of sir land was executed before the passing of the Act. It was held that they did form part of the mortgage property and hence were saleable in the execution of the mortgage decree. The facts of the present case are different but the vital point to note is the view of the Full Bench that the previous sir and khudkasht rights of the zamindar continued to vest in him and have only changed in name. It is significant that under the Z. A. and L. R. Act the zamindars received no compensation for the conversion of his rights of ownership into bhumidhari rights which means that the legislature did not intend to deprive him of his property rights.
15. Mr. Gautam contended that proprietory rights before the Act were equal to ownership whereas bhumidhari is merely a tenure. Therefore, a contract for the sale of zamindari property is fundamentally different from an agreement to convey bhumidari rights and the respondents cannot be compelled to perform a contract which they never made. This argument is effectively answered by the observations of the Full Bench in AIR 1959 All 179, that there is virtually no difference between zamindari rights and trie Khudkasht rights of a zamindar before the Act and his bhumidhari rights in respect of the same land after the Act. It is true that the Zamindar was the owner of the land whereas the bhumidhar holds his land under a tenure. But the rights enjoyed by a bhumidhar are transferable subject to restrictions, and are in many respects indistinguishable from ownership. In a contract for the sale of zamindari rights, it cannot be said that the original object and purpose of the contract is frustrated if these rights are subsequently converted into bhumidhari rights.
16. The nature and scope of this doctrine of frustration of contract as applicable in India was considered by the Supreme Court in Satyabrat Ghose v. Mugneeram Bancur and Company, AIR 1954 SC 44, in which it was held that the word 'impossible' in Section 56 of the Contract. Act has not been used in the sense of physical or literal impossibility. The Court also took the view that Section 56 is exhaustive on the question of impossibility of performance of a contract and that it is not permissible to import the principles of English Law "dehors" these statutory provisions.
17. In the present case the original vendees (sic-vendors?) conveyed all their rights in the zamindari property (haqiyat zamindari) by sale, and there was an agreement to reconvey these rights within ten years at the option of the vendors. Subsequently, the pre-emptar was substituted in the place of the original vendees. After the passing of the Z. A. and L R. Act the rights of the pre-emptor and his transferees in the khudkasht and grove lands were settled on them as bhumidhari rights. Their previous rights continued to vest in them under a new nomenclature. The change in name does not render the agreement to resell impossible.
18. Learned counsel for the respondents argued that the word 'impossible' in Section 56 should be used in the literal sense. This argument cannot be accepted against the law declared by the Supreme Court. The sanctity of contract is the foundation of our law of contract and the doctrine of impossibility does not displace that principle, but merely enables the Court to enforce it equitably. It releases a party from its obligation to perform a contract where performance has become impossible as a result, of events out of the control of that party. An agreement for the sale of a house, for example, cannot be performed it the House is destroyed by enemy action or any other cause. In such cases the principle of sanctity of contract is not compromised if the court holds that it has become impossible for the seller to perform the agreement. But the doctrine of impossibility cannot be applied in a manner which will weaken the principle of sanctity of contract. The plea of impossibility will not be entertained by the Court if in spite of supervening events, the object and purpose of the parties is not rendered useless and the contract can be performed substantially in accordance with the original intention of the parties though not literally in accordance with the language of the agreement. The Court will not apply the doctrine of impossibility to assist a party who does not want to fulfil his obligations under the contract and relies on literal impossibility to back out of it. The doctrine of impossibility, which is based on equity and common sense, cannot be permitted to become a device for destroying the sanctity of contract. Precisely for this reason the Supreme Court has held that the word "Impossible" in Section 56 has not been used in the sense of physical or literal impossibility.
19. It will not be out of place to mention that Mr. Ambika Prasad stated on behalf of the plaintiffs that they were entitled to rely on Section 15 of the Specific Relief Act which provides, inter alia, that where a party to a contract is unable io perform the whole of his part of it, the Court may at the suit of the other party direct the party in default to perform specifically so much of his part of the contract as he can perform provided that the plaintiff relinquishes all claim to further performance. The vendees in the original transaction had agreed to transfer all their rights in the land at the option of the vendors, and the plaintiffs will be satisfied if the present defendants transfer all their present rights in the land even if these are short of full ownership. The plaintiffs are willing to relinquish all claim to further performance. In my view, the passing of the Z. A. and L. R. Act has not rendered the contract impossible if it is otherwise enforceable. The preliminary objection, therefore, fails.
20. I shall now consider the appeal on merits. One of the crucial points in controversy between the parties is the nature of the transaction between the original vendors and the vendees on 21-1-1936. The appellate court has held that the sale and the agreement to sell were two distinct and independent agreements and not a part of the same transaction. He was influenced by a recital in the agreement that a sale deed had already been executed and registered. From this the learned Judge concluded that the sale deed must have been executed and registered before the terms of the agreement were settled between the parties. This reference is unwarranted and contradicted by the surrounding circumstances and, the evidence on the record. The endorsement of the Registrar's office shows that both the sale deed and the agreement to resell were registered on the same day between hours 12 noon and 1 p.m. They bear the serial Nos. 106 and 107 respectively, which indicates that one was registered soon after the other and there was no registration of another document in the interval. Even assuming the unlikely possibility that the sale deed was registered precisely at 12 noon and the agreement to sell at 1 p.m., this leaves a margin of one hour only for the parties to negotiate a fresh agreement, settle its terms, find a scribe to write out the agreement, purchase the necessary stamps and return to the Registrar's office at 1 p.m. to get the document registered. Thus the conclusion of the learned judge is negatived even if it is assumed that the registration of the two documents was separated by an interval of one hour. However, I am not prepared to accept the assumption that the interval was one hour. The Registrar's endorsement on each document says that it was presented for registration between the hours of 12 noon and 1 p.m. The fact that the time of each document has been described in identical words indicates that both were presented simultaneously.
21. The learned Judge based his entire argument on the fact that the agreement to resell was registered after the sale deed and mentions that a sale deed had already been executed. But he did not pause to reflect that an agreement to resell is meaningless and ineffective without a previous sale and must in the very nature of things refer to the sale. Precisely for this reason the sale deer was registered first. The learned Judge has based his surmise entirely on the order in which the documents were registered without realizing that it was inevitable in the very nature of the transaction.
22. Unfortunately, the learned Judge completely ignored a vital piece of direct evidence on this point namely, the oral testimony of several witnesses who appeared for the plaintiffs. One of them was Piarey Lal, the son of Tota Ram, who executed the agreement on behalf of his father Tota Ram, and presented it for registration. Another was Ram Chand, also a signatory to the agreement Who was present at the time when the transactions were made. The third was Jaipal son of Charan Singh who was also present. I have read the depositions of these three witnesses. The combined effect of their evidence on this part of the case is overwhelming, for they prove that the parties entered into a contract of sale with an option of reconveyance. It is significant that there was no cross-examination worth the name of these witnesses on this point. The appellate court completely ignored their testimony. It is now a principle well settled by the Supreme Court that a finding of fact is illegal if in arriving at it the Court completely ignores a relevant and vital piece of evidence. The view of the appellate court that the contract of sale had been already registered before the parties commenced their negotiations for the subsequent agreement is completely contradicted by the evidence and no reasonable person would agree with it. I am afraid it is a finding which has to be discarded as perverse. Disagreeing with the learned Judge, I hold that the entire evidence and the surrounding circumstances indicate that the sale and the agreement to resell were parts of the same transaction.
23. The next question is whether the preemptor who was not a party to the original transaction is bound by the agreement to resell. Mr. Gautam contended on his behalf that under the law a pre-emptor is substituted tar the original vendee and is not concerned with any other agreement which the vendee may have made in respect of the subject-matter of the sale.
24. Learned counsel conceded that if the agreement of re-sale were contained in the sale deed itself, the preemptor would be as much bound by it as the original vendee. But he contended that in this case the transaction had been split up into two documents and the agreement to resell forms no part of the sale deed. I do not agree. If the sale and the agreement to resell are parts of the same transaction and the preemptor had notice of the latter at the time when he exercised his right of preemption, he would be as much bound by it as if it were incorporated in the sale deed itself. The preemptor and his transferees are really seeking to take advantage of the fact that the agreement between the parties was incorporated in two documents instead of one, but the reason for this, is not difficult to understand. After the amendment of the Transfer of the Property Act in 1929, if by a single document of sale property is sold which contains a condition that on repayment of the purchase money the purchaser shall re-transfer it to the seller, the purchaser runs the risk of the document being construed as a mortgage by conditional sale. Therefore, whenever the purchaser wants a transfer of property in his favour by an out and out sale, but agrees to re-convey it at the option of the seller, the transaction is split up in two separate documents, both being registered, one incorporating the sale and the other the agreement to resell. Learned counsel contended that in a case of preemption an agreement to resell can bind the preemptor only if it is incorporated in the sale deed itself. But if this is done, the transaction may be not a sale but a mortgage by conditional sale and there would be no right of preemption. In my opinion, the splitting up of the transaction into two documents does not release the preemptor from the obligation to resell if he had notice of it when he exercised his right to preempt.
25. The next question is whether the preemptor, at the time when he exercised these rights of preemption, had notice of the agreement to resell. Learned counsel for the preemptor conceded that the preemptor's title was derived from the decree passed by this Court in second appeal No. 423 of 1942 which arose out of the suit for preemption. The judgment in that appeal was produced in evidence in this suit and the operative portion or it makes it clear that the preemptor had notice of the fact that the vendees had entered into an agreement to resell the property which he wanted to preempt. One of the questions in that appeal concerned the amount of consideration paid under the sale, the vendors claiming Rs. 25007- and the preemptor alleging that it was Rs. 1400/-. This Court held that consideration was Rs. 1900/- but to avoid any future conflict between the sale deed and the agreement to resell on the question of the amount or consideration, the Court held.
"We further declare that the consideration for the agreement (to resell) of January 21, 1936 is Rs. 1900/-only and not Rs. 2000/- as provided in the agreement on payment of which the property was to be reconveyed and thus does not affect any other rights under that agreement."
I sent for the decree prepared by this Court. It has been drawn up exactly in terms of the operative portion of the judgment itself. As the title of the preemptor was derived from that decree, he cannot now contend that he was unaware of the agreement to resell when he exercised his right of preemption. He had notice of it and, under Section 3 of the Transfer of Property Act (interpretation clause) he must be deemed to have notice of the tems of the agreement which he would have known from inquiry. Even apart from this section, I think it is certain that the terms of that agreement must have been examined by this Court in S. A. No. 423 of 1942 in the presence of the parties of which the preemptor was one. I am, therefore, of the opinion that the preemptor is bound by the agreement to resell.
26. I shall now consider the liability under the agreement of Shishpal Singh and Bhura Singh, the second and third defendants who are the transferees of the preemptor. They were bound to examine the title of the preemptor which is derived not from the sale deed but from the decree of this Court passed in S. A. No. 423 of 1942. That decree put them on notice that the original vendees in whose place the pre-emptor was substituted had made an agreement to re-sell the property. Consequently, they must be fixed with the notice of the terms of this agreement which they were bound to examine under Section 3 of the T. P. Act. Therefore they are also bound by the agreement to resell.
27. Mr. Gautam next contended that the agreement to resell was not binding on two of the vendees In any case, namely, Shamlal and Totaram. He pointed cut that Shamlal, at the time of the transaction was a minor under the guardianship of his brother Ram Chand who executed the agreement. Learned counsel contended that in the case of a joint Hindu family, an agreement made on behalf of a minor to sell joint property is not binding on him unless it is shown that the sale was for the benefit of the minor. In this case the plaintiffs had not discharged the onus of proving that the agreement to resell was for the benefit of Shamlal. This argument is founded on a misunderstanding of the nature of the transaction of 21st January, 1936, which was not an agreement of transfer of property but a purchase of property subject to an agreement to resell it at the option of the seller. The question whether the purchase was for the benefit of the minor is irrelevant in the present case. If the agreement was for the minor's benefit, he is bound by it. If he contends that it was not for his benefit, he can reconvey the property and claim the return of the sale price which is precisely the purpose of this suit. Thus whatever be the minor's attitude to the transaction, the plaintiffs are entitled to ask him to convey the property to them.
28. It was next contended that the agreement to resell was not binding on Totaram as it had not been executed by him but by his son Pyarey Lal. Learned counsel pointed out that at the time of the transaction Totaram was the Karta of the joint family consisting of himself ana Pyarey Lal. His son had no authority to execute the agreement on behalf of the family which is, therefore, not binding on Pyarey Lal (sic). This contention was accepted by appellate court, but in my view it has no substance. Pyarey Lal in his testimony gave a full explanation of the circumstances in which he had to sign the agreement. He said that his father was ill at the time and had authorised film to manage the family business on his behalf, the learned Judge did not consider his evidence, probably because he did not consider it necessary to go into this question in detail in view of his finding that the agreement to sell and the sale were two separate transactions. I have read the testimony of Pyarey Lai. 1 think he was telling the truth when he said that he acted on behalf of his father because of the latter's illness. In cross-examination the fact of the father's illness was not denied. In the agreement to re-sell Pyarey Lal had described himself as the Pisar wa Karkun of Lala Totaram.
Mr. Gautam contended that the word 'Karkun'. means merely an agent. I do not think so. After consulting the Urdu Distionary, I am of the opinion that the Urdu word 'karkun' is the equivalent of the Hindi word 'karyakarta' and means manager. The agreement, therefore, purports to have been signed by a person who described himself as the manager of the Joint family consisting of Pyarey Lal and Totaram. Mr. Gautam contended that even assuming that this is so, Pyarey Lal as junior member of the family had no authority to execute an agreement for the conveyance of the family property. I do not agree. Hindu Law authorises a younger member of the Mitakshara joint family to alienate or otherwise deal with immoveable property belonging to the family for family necessity, whenever he is put forward to the outside world by the elder members of the family as the managing member. This view was taken by the Calcutta High Court in Mudit Narain Singh v. Ranglal Singh, ILR 29 Cal 797 and I respectfully agree with it. The view of the Hindu commentators is summarised in this judgment at pages 801-802 and I cannot add anything useful to this summary. But I take the liberty of quoting the concluding paragraph of this summary:--
"The power of a dependent member of a joint family, who is for some reason or other entrusted with the management of the joint estate, must be such as would enable him to deal with it for the benefit of the coparceners in cases of need. The assent of the other members including that of the father or grandfather if they be alive would be implied. Brahaspati quoted in Virmitrodaya says, Should even a dependent member enter into a transaction for tne need of the family the head of the family should not set it aside."
The facts of that case were somewhat different but it appears to me that the question whether a junior member of that family is authorised to make a transaction on behalf of joint family is one of fact. In this case Pyare Lal was expressly authorised by Tota Ram and the agreement made by him was never repudiated by Tota Ram. The illness of Tota Ram at the time of the transaction is established by the testimony of Pyarey Lal. The overwhelming inference, therefore, must be that Pyarey Lal was authorised by his father to act as Karta when he executed the agreement.
29. Learned counsel pointed out that the sale deed which was executed on the same day is not in favour no Pyarey Lal, and, therefore, Pyarey Lal's assertion that the acted as the karta of the family is inconsistent was the fact that the conveyance in the sale deed was in favour of Tota Ram. I am not very much impressed by this argument. Pyarey Lal was authorised to execute the agreement as his father was too ill to do it, but the sale was in favour of Tota Ram as the elder head of the family. Illness may prevent a person from executing an agreement but does not prevent a transfer by others in his favour as he is a passive party. Therefore, there was nothing surprising if the actual transfer of the property under the sale deed was made in favour of the father while the execution of an agreement which had to be presented in person before the Registrar was done by the son. The authority of Pyarey Lal has not been repudiated by Tota Ram, and it is not open to the present defendants to take shelter behind any alleged lack of authority in Pyarey Lal after Pyarey Lal's own father has accepted the transaction.
30. Summing up my conclusions, 1 am of the view that the agreement to resell was an integral part of the sale, that all the original vendees were bound by it, that the pre-emptor had notice of the agreement to re-sell when he exercised his right of pre-emption and is bound by it, and that his transferees Shishupal Singh and Bhura Singh also had notice of this agreement and are bound by it, and that the agreement has not been rendered impossible of performance as a result of the changes brought about by the Z. A. and L. R. Act.
31. In the end Mr. Gautam raised another objection based on a notification made under Section 4 of the U. P. Consolidation of Holdings Act in respect of the village in which the land in dispute is situate. It was conceded by counsel for the plaintiff appellants that such a notification has been made during the pendency of this appeal, and that it includes the land in dispute. Mr. Bantam contended that after this notification Section 5(b) of that Act became operative under this clause.
32. Learned counsel contended that the present appeal (which is a contrinuation of the plaintiff's suit) is a suit for a declaration of rights and interests over the land in dispute and also for possession of the land, consequently, the hearing of this appeal must be stayed. Learned counsel for the plaintiff appellants conceded that if this section applies to the present case the hearing of the appeal must be stayed till the publication of the notification under Section 52 of the Consolidation of Holdings ACT, but he contended that this is neither a suit for the declaration of rights in land nor for possession.
33. 1 have examined the plaint, in the suit the plaintiffs have prayed for two reliefs (1) that the defendants be directed to execute a sale deed in their favour or in default the Court should execute it itself and (2) the Court should put the plaintiffs in possession of the land in dispute after the execution and registration of the sale deed. It appears to me, therefore, that this is a suit partly tor specific performance of an agreement to sell the land in dispute and partly for possession of that land after that agreement has been executed. As regards the first part I do not see how the Consolidation authorities can decide the questions which have arisen in this suit with regard to the obligation of the defendant under the agreement in dispute. Ultimately, the learned counsel for the respondents was compelled to concede that this is not a question which can be decided by the consolidation authorities. I must, therefore, hold that the suit for specific performance of the contract of sale in so far as it relates to the execution and registration of the sale deed cannot be stayed under Section 5 of the Act.
34. But I agree with the learned counsel for the respondent that the part of the suit which is for possession of the land after the execution and registration of the sale deed has to be stayed, as this Court cannot decree a suit for possession of land in respect of which a notification under Section 4 has been made.
35. In the result this appeal must be allowed to this extent that the plaintiff is held entitled to a suit for specific performance of the agreement dated 21st January 1936 for the re-sale of those portions of the land in dispute (serial No. 107) which did not vest in the State under the 2. A. and L. R. Act and which have been settled with the pre-emptor the first defendant Mishrilal, or his transferees, the second and third defendants Shishupal Singh and Bhura Singh, under Section 18 of the Z. A. and L. R. Act.
36. But no formal decree can be passed in favour of the plaintiffs until it is ascertained what portion of the land has been settled under Section 18 and under whicn defendant. For this purpose an issue has to be remitted to the lower court. The parties are agreed that in view of the decision of this Court, this is the proper course.
37. I, therefore, remit the following two (sic) issues to the lower appellate Court:
(1) What part of the land which was agreed to be re-conveyed under the agreement of 21st January 1936 was at the time of the agreement khudkasht or grove-land which was subsequently settled with the pre-emptor, the first defendant Mishri Lal under Section 18 of the Z. A. and L. R. Act as the Bhoomidhar thereof?
(2) What part of the aforesaid khudhasht or grove land was transferred by the pre-emptor to the second defendant Shishupal Singh and subsequently settled with aforesaid Shishupal Singh under Section 18 of the Z. A. and L. R. Act as the Bhoomidhar thereof?
(3) What part of the aforesaid khudhasht or grove-land was transferred by the pre-emptor to the third defendant Bhura Singh and subsequently settled with the aforesaid Bhura Singh under Section 18 of the Z. A. and L. R. Act as the Bhoomidhar thereof?
38. The parties shall be permitted to lead evidence in support of their respective cases. After completing its inquiry the learned Judge shall record a finding on each issue. It is stated for the guidance of the appellate court that the object of the inquiry is to ascertain how much of the land which was agreed to be re-conveyed under the agreement of 21st January 1936 subsequently vested in the Stats and cannot he re-conveyed, and how much was Khudkasht or grove-land which never vested in the State and can be re-conveyed under the agreement in accordance with the decision of this Court in this appeal,
39. For the purpose of this inquiry the appellate court shall ignore any plea of the defendants that any part of the land settled with any of them was transferred to a third person during the pendency of the present litigation. Any such transfers pendente lite should be ignored.
40. The appellate court shall remit its findings with in three months of the receipt of the record from this Court. After the receipt of its findings (together with the record), the parties will be given the usual opportunity to file their objection, if any, against them.
41. The case shall then be listed before me for the purpose of passing a formal decree for the specific performance of the agreement for the re-conveyance of the portions of the land which have been found not to have vested in the Staje under the Z. A. and L. R. Act.
42. As this is an old case, I direct the office to send the record to the lower court forthwith with a request that the inquiry before it should be expediated.
43. The hearing of this appeal as regards the prayer for possession shall be stayed until after the issue of notification under Section 52 of the Consolidation of Holdings Act but this is without prejudice to the right of the plaintiffs to agitate before the Consolidation authorities its right of possession after a sale deed, if any, has been executed in their favour under the decree of the court.