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2007 SCC OnLine Kar 356 : ILR 2007 Kar 3625 : (2008) 4 Kant LJ
293 : (2007) 5 AIR Kant R 582 : (2007) 4 ICC 324 : 2007 AIHC
3726 : (2008) 1 CCC 41 : (2007) 4 KCCR 2476
In the High Court of Karnataka
(BEFORE A.C. KABBIN, J.)
Smt. Anitha Vaz
Versus
Sri M. Rangappa Since dead by his L.Rs and
*
Another
RFA No. 450/2000
Decided on August 16, 2007
(A) SPECIFIC RELIEF ACT, 1963 — Suit for specific performance of a
contract — The agreement of sale of a family property made by Kartha of
the family — Challenge to — By the members of the family — Want of legal
necessity — Proof of — Grant of decree of specific performance — HELD,
Where the agreement of sale of a family property made by the Kartha of
the family is challenged by the members of the family on the ground of want
of legal necessity and the prospective purchaser is not able to establish the
legal necessity, the agreement is enforceable to the extent of share of the
contracting party in the family property — FURTHER HELD, If the share of
the contracting party in the family is ascertainable, the decree that can be
passed would be in respect of the share of the seller in the property and the
purchaser may be asked to apply for partition and get the share
demarcated.
(B) SPECIFIC RELIEF ACT, 1963 — Grant of decree for specific
performance under bonafide agreement — Claim of the objector — Plaintiff
is in possession of the property in part performance of the contract — Duty
of the Court — HELD, Where Court finds that the agreement entered into by
the
Page: 3626
plaintiff for purchase of the property is bonafide, but is not certain about the claim
of the objector, it would be oppressive to grant partial decree and ask the
purchaser to institute a suit for partition to carve out the share of the seller — In
such cases, if the plaintiff is already in possession of the property or has been put in
possession of the property in part performance of the contract, it will be
appropriate to meet the ends of justice to grant decree for specific performance of
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the agreement as a whole directing that the sale shall be subject to the decision in
any subsequent suit for partition in the family — FURTHER HELD, In that event, the
alienation in furtherance of specific performance has to be considered as sale of the
right of the seller as may be determined in the subsequent suit — Therefore, to do
justice, specific performance in the present case has to be in respect of the whole
agreement, however, subject to any right that may be established in a suit which
may be filed for partition by a member of the family.
Appeal is Allowed/Partial decree granted by the Trial Court is modified.
CASES REFERRED: AT PARAS
1. (1990) 3 SCC 517 : AIR 1990 SC (Ref) 11
854
Kartar Singh v. Harjinder Singh
2. JT 2000 (7) SC 483 (Ref) 12, 17
A. Abdul Rashid Khan (Deceased)
by his LRs v. P.A.K.A. Shahul
Hamid
Page: 3627
3. AIR 1992 Patna 40 (Ref) 12
Triloki Vishwakarma alias Triloki
Misttri v. Zaitun Nisa
4. AIR 1967 SC 574 (Ref) 13, 15
Radhakrishnadas v. Kaluram (dead)
by his LRs
5. (1986) 1 SCC 366 : AIR 1986 SC (Ref) 13
79
Bhagwant P. Sulakhe v. Digambar
Gopal Sulakhe
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6. AIR 1954 SC 379 (Ref) 13
Srinivas Krishnarao Kango v.
Narayan Devji Kango
7. (1986) 3 SCC 567 : AIR 1986 (Ref) 20
SCC 1753
Commissioner of Wealth Tax,
Kanpur v. Chander Sen
Advocates who appeared in this case :
Sri A. Ram Mohan, Advocate for Appellant;
M/s Sreevatsa Associates for R-1(a), Syed Imran, Advocate for R1(c)
to R-1(g), K.V. Shivaprasad, Advocate for R2, R-1(b), served
unrepresented Advocate for Respondents.
JUDGMENT
KABBIN, J.:—
By judgment dated 27.11.1999 passed by the learned XI Addl. City
Civil Judge, Bangalore in O.S. No. 92/1994, the appellant's (the
plaintiff's) suit for specific performance of the contract has been
Page: 3628
partly decreed directing the respondent No. 1 (the defendant No. 1) to
execute the deed for the sale of joint share of the defendant No. 1 in
the suit property. Praying for a decree for grant of relief for the sale of
the whole of the property as per agreement, the plaintiff has preferred
this appeal.
2. The suit property (i.e. schedule ‘A’) is H. No. 39/9, Marappa Line,
Bazar Street, Neelasandra, Bangalore consisting of land and building
thereon totally measuring east to west 40 feet, north to south 15¾
feet. Admittedly, the plaintiff was residing in the said premises as the
tenant paying rent to the defendant No. 1's elder brother M. Rangaiah;
and later to the defendant No. 1, after Rangaiah's death. It is the claim
of the plaintiff that the defendant No. 1 offered to sell the said
property, i.e., the property described in Schedule “A” to her for a sum
of Rs. 1,00,000/- (Rupees One lakh) to discharge certain debts and
after receiving an advance of Rs. 70,000/- (Rupees Seventy thousand)
executed an agreement on 15-02-1993 in this regard. Execution of the
agreement and receipt of advance of rupees seventy thousand - cash of
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Rs. 15,000/- and cheque for Rs. 55,000/- have been admitted by the
defendant No. 1 in the written statement. The sale was agreed to be
completed before the end of December 1993. It is alleged by the
plaintiff that despite repeated requests and notice by her to the
defendant No. 1, the latter did not execute the sale deed, but instead
he got a legal notice issued through the advocate for the defendant No.
3 (defendant No. 1's son) making false and frivolous claim to wriggle
out of the contract. It is further alleged by the plaintiff that
subsequently the defendant No. 1 set up his mother (the defendant No.
4) laying claim of an interest in schedule ‘A’ property. Alleging that the
st
1 defendant had sold other properties adjacent to the suit
Page: 3629
property as the sole and absolute owner of the properties, the plaintiff
claimed that the defendant No. 1 was bound to execute the sale deed
as per agreement. It was further alleged by the plaintiff that the first,
third and fourth defendants, in collusion with the second defendant
forcibly entered one room situated at the rear portion of ‘A’ schedule
property and dispossessed her from the portion of that room. The
description of that room has been given in ‘B’ schedule to the plaint.
The plaintiff therefore sought for a decree for specific performance of
the agreement of sale after receiving balance consideration and delivery
of vacant possession of ‘B’ schedule property. She also prayed for
permanent injunction restraining the defendants from interfering with
her possession of ‘A’ schedule property.
3. The defendants 1 and 2 filed a common written statement. While
admitting the possession of’ A’ schedule property by the plaintiff as
tenant and payment of rent by her to M. Rangaiah and later to the
defendant No. 1, they admitted the agreement and receipt of advance
amount by the defendant No. 1. It was contended that since the
property was that of the joint family consisting of five members, the
defendant No. 1 had no authority to execute the sale deed and
therefore the plaintiff was entitled only to the refund of advance
amount. As regards the claim of the plaintiff about forcible eviction
from ‘B’ schedule property, it was simply denied.
4. The defendant No. 3 (defendant No. 1's son) and defendant No. 4
(defendant no. 1's mother) filed a common written statement. Though
they admitted the possession of ‘A’ schedule property by the plaintiff as
tenant, they denied the claim of the plaintiff that possession was in
furtherance of part performance of the agreement for sale.
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Page: 3630
They claimed that they along with the defendant No. 1 and other
members of the family, were the owners of the property and therefore
the plaintiff was entitled only to the refund of advance money. They
denied the claim of the plaintiff that the sale was to discharge the loans
alleged to have been taken by the defendant No. 1.
5. On these pleadings, the following issues were framed by the Trial
Court:
1. Whether the plaintiff proves that she entered into agreement of
sale of the suit schedule property with defendant No. 1 for
consideration of Rs. One Lakh as per para. 4 of the plaint?
2. Whether plaintiff proves that agreement of sale is executed on
15.2.1993 by defendant No. 1 as per para 4 of the plaint?
3. Whether the plaintiff further proves that she has paid Rs. 15,000/
- by cash and Rs. 55,000/- by cross cheque No. 0366471 dated
15.2.1993 to defendant No. 1 who acknowledged it as per para 4
of the plaint?
4. Whether plaintiff proves that she is put in possession of the suit
property from 15.2.1993 as per para 4 of the plaint?
5. Whether the plaintiff proves that the defendants are not ready to
perform their part of contract?
6. Whether the plaintiff proves that she is still ready to perform her
part of contract with defendants?
Page: 3631
st
7. Whether the plaintiff proves that 1 defendant postponed the sale
on pretext as per para 5 of the plaint?
8. Whether the defendants prove that the plaintiff was ready to take
the refund as per para 9 of the written statement?
9. Whether the plaintiff is entitled for the suit claim against the
defendants?
10. If so, under what order or decree?
6. On behalf of the plaintiff, she and one witness were examined. On
behalf of the defendants, the defendants 1 to 3 and one witness were
examined. After considering the evidence and the arguments of the
learned advocates on both sides, the learned Trial Judge answered
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issue Nos. 1 and 3 to 7 in the affirmative, issue Nos. 2 and 9 partly in
the affirmative and issue No. 8 in the negative. Holding that the
st
agreement executed by the 1 defendant in favour of the plaintiff was
not binding on other members of the joint family, the Trial Court held
that, agreement could be specifically performed only in respect of joint
share of the defendant No. 1 in the property after receiving balance
consideration; and consequently he partly decreed the suit. This appeal
has been preferred by the plaintiff claiming specific performance of the
entire agreement and for other reliefs.
7. It is argued by Sri. A. Ram Mohan, learned counsel for the
appellant that only because a plea had been taken by the respondents
and the defendant No. 4 (now no more) that the property was the joint
family property of Rangaiah and the defendant No. 1, the learned
Page: 3632
Trial Judge has held that the agreement is binding only to the extent of
the defendant No. 1's joint share, but that this plea taken by the
defendants 1, 3 and 4 at the time of evidence that there was no
partition in the family of the defendant No. 1 and his brother had not
been mentioned in the written statement. He points out that what all
had been pleaded was, that the property was the joint family property
of five persons. He submits that the circumstances, which indicated
separate enjoyment of the properties by the defendant No. 1's brother
and the defendant No. 1 itself showed that the family had not remained
joint and that as regards the sale of the properties which had fallen to
the share of defendant No. 1, he being the kartha of the family, the
agreement entered into by him is binding on other members of his
family. Pointing out that there were certain sales of other properties by
the defendant No. 1 which had not been challenged by the defendants
3 and 4, it is submitted by him that the agreement with regard to the
sale of suit property is binding on the defendant No. 1, 3 and 4 and
therefore the learned Trial Judge ought to have granted relief of specific
performance in respect of the whole of the property.
8. As regards the plea of dispossession taken by the appellant in the
plaint, the learned counsel for the appellant points out to the admission
of the defendants in the written statements that the appellant/ plaintiff
was in possession of the whole of ‘A’ schedule property including ‘B’
schedule property. He submits that therefore the appellant/ plaintiff
was entitled also to the relief of possession of ‘B’ schedule property.
9. Replying to this, Sri. K.V. Shiva Prasad, learned counsel for R-2
submits that the purchase of ‘A’ schedule property by the
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Page: 3633
defendant No. 1's father is indicative of the fact that it is the ancestral
property of the defendant No. 1 in which by birth the defendant No. 3
(respondent No. 2) got a share and the defendant No. 4 (wife of the
defendant No. 1) had also a share therein; and consequently the
agreement of sale entered into by the defendant No. 1 without the
consent of defendants 3 and 4 and not for family necessity is not
binding on them. He further submits that therefore the learned Trial
Judge was right in decreeing the suit only in respect of the defendant
No. 1's joint share in the property.
10. The finding of the learned Trial Judge in favour of the plaintiff on
issue Nos. 1, 3 and 7 has not been challenged by the defendants. The
only point that is required to be considered in this appeal is:
Whether the plaintiff/appellant is entitled to the decree for
specific performance in respect of the suit property as per
agreement?
11. The learned Trial Judge had found that the execution of the
agreement and payment of the amount had been proved. The readiness
and willingness of the plaintiff to perfonn her part of the contract also
had been proved. What had come in the way of the Trial Court
decreeing the suit as prayed was the plea of the defendants 3 and 4
that they had shares in the property, for the sale of which the
defendant No. 1 could not have contracted in the absence of any legal
necessity. Relying on the observation of the Supreme Court in the case
of Kartar Singh v. Harjinder Singh1 that specific performance in respect
of share of property can be passed
Page: 3634
and vendee has a right to apply for partition and get the share
demarcated, the Trial Court has partly decreed the suit directing the
defendant No. 1 to execute the sale deed to the extent of his joint
share.
12. Defending that decision, Sri. K.V. Shivaprasad, learned counsel
for the respondent No. 2 refers to five other decisions. In A. Abdul
Rashid Khan (Deceased) by his L.Rs v. P.A.K.A. Shahulhamid2 where
the property agreed to be sold was held jointly, one of the co-sharers
had agreed to sell such joint property. It was held that the decree can
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be to the extent of the share of executant of the agreement. It was
further held that the decree can be only to the extent of transferring
the share of the executant in the property to the other contracting
3
party. In Triloki Vishwakarma Alias Tril Oki Mistri v. Zaitun Nisa it was
held that the seller was not entitled to the right of alienating the share
in the joint family property. This decision being inconsistent with the
view Supreme Court has taken in Abdul Rashid Khan's case mentioned
above, the learned Trial Judge has rightly not followed the principle in
Triloki Vishwakarma's case.
13. The other three decisions referred to by the learned counsel for
the respondent No. 2 viz., Radhakrishnadas v. Kaluram (Dead) by his
L.Rs4, Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe5 and Srinivas
6
Krishnarao Kango v. Narayan Devji Kango dealt with the
Page: 3635
requirement of alienee to prove the legal necessity and the character of
any joint family property continuing to be joint until severance of the
status.
14. The evidence adduced by the defendant No. 1 showed that this
property had been purchased by the defendant No. 1's father Marappa.
After his death, it admittedly devolved on Marappa's two sons Rangaiah
and Rangappa (defendant No. 1). The defendant No. 4 claimed share in
the property she being Marappa's widow and the defendant No. 3
claimed right as co-parcener with the defendant No. 1.
15. The plea of the plaintiff that the agreement of sale be considered
as having been executed by the defendant No. 1 as Karta of the family
has not found favour with the Trial Court since the plaintiff was unable
to substantiate the necessity of sale for family benefit. As observed by
the Supreme Court in the decision in Radhakrishnadas v. Kaluram
(Dead) (Supra), the alienee in case of challenge to alienation has to
establish legal necessity for the karta to alienate the property. Though
there is a recital in the agreement of sale (Ex. P3) that the vendor was
in need of funds for his family and there was legal necessity and though
there is a possible need for sale as can be inferred from the sale of two
other properties by the defendant No. 1 as admitted in the cross-
examination, in the absence of material to show what that need was, I
find that the Trial Court was right in forming an opinion that the
plaintiff had not shown that there was legal necessity for the defendant
No. 1 to sell the property on behalf of other members of the property.
16. Then the question that would arise is as to whether the final
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order passed by the learned Trial Judge directing specific performance
Page: 3636
of the agreement only to the extent of joint share of the defendant No.
1 shall be confirmed or the plaintiff is entitled to any other equitable
order. It is submitted by Sri. Ram Mohan, learned counsel for the
appellant that as the evidence shows this is not a case of manoeuvring
by the plaintiff to get the property but is a bonafide agreement to
purchase the property. He points out that the plaintiffs husband was
the tenant in the property and after his death, the plaintiff had
continued as the tenant and had accepted the offer made by the
defendant No. 1 for the sale of the property, since she was getting
service benefits of her husband to the extent of Rs. 1,10,000/- on his
death out of which she agreed in 1993 to invest Rs. 1,00,000/- for
purchase of this property. He also points out that the defendants 1, 2
and 4 are not specific as to who other sharers are except saying that
there are five sharers and also they do not say what other properties
had been owned by the family. He submits that the acceptance of rent
by Rangaiah earlier and later by the plaintiff indicated a possible
division between them, but nothing specific has been placed by the
defendant No. 1 and therefore the defendants are not specific as to
whether there was partition between Rangaiah and the defendant No. 1
(respondent No. 1) and have not specified who other sharers are. He
argues that therefore it would be oppressive to ask the
plaintiff/appellant to go for a suit for partition. In these circumstances
he seeks an order moulding the relief in favour of the plaintiff within
the limit of entitlement of the plaintiff to the relief.
17. Sri. K.V. Shiva Prasad, learned counsel for the respondent no. 2
in this regard has relied upon the observation of the Supreme Court in
A. Abdul Rashid Khan (Dead) v. P.A.K.A. Shahul Hamid (Supra)
wherein it is
Page: 3637
observed that the decree for specific performance in case of sale of a
joint property if other co-sharers had not joined the agreement could be
only to the extent of transferring the share of executant of the
agreement in such property to the other contracting parry. That was a
case in which the co-parcener who had entered into an agreement of
sale had a specific share which could be ascertained and it was
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th
ascertained as 5/6 share in the property. The other decisions relied
upon by the learned counsel for the respondent no. 2 also are of similar
nature. The difficulty arises where the defendants who have objected to
the specific performance do not furnish full particulars of the co-sharers
and the properties and from available materials, the Court may not be
in a position to determine about the claim of the objectors. Under such
circumstances whether a bonafide purchaser can be asked to seek his
remedy in a partition suit. Is the Court powerless to do justice in giving
relief to a bonafide purchaser?
18. Where the agreement of sale of a family property made by the
kartha of the family is challenged by the members of the family on the
ground of want of legal necessity and the prospective purchaser is not
able to establish the legal necessity, the agreement is enforceable to
the extent of share of the contracting party in the family property. In
that event, if that share is ascertainable, the decree that can be passed
would be in respect of the share of the seller in the property and the
purchaser may be asked to apply for partition and get the share
demarcated. There may be cases where the members of the seller's
family object to the specific performance sought for, but for want of
requisite particulars like the properties owned by the family or where
the right of the member of the seller's family is not certain, the Court
may not be in a position to determine whether the claimants
Page: 3638
have a share in the property. Where Court finds that the agreement
entered into by the plaintiff for purchase of the property is bonafide,
but is not certain about the claim of the objector, it would be
oppressive to grant partial decree and ask the purchaser to institute a
suit for partition to carve out the share of the seller. In such cases, if
the plaintiff is already in possession of the property or has been put in
possession of the property in part performance of the contract, it will be
appropriate to meet the ends of justice to grant decree for specific
performance of the agreement as a whole directing that the sale shall
be subject to the decision in any subsequent suit for partition in the
family. In that event, the alienation in furtherance of specific
performance has to be considered as sale of the right of the seller as
may be determined in the subsequent suit.
19. In the present case plaintiff was in possession of the property as
tenant. Her right to possession continued in view of the agreement and
her willingness to perform her part of the contract. Consequently her
possession has to be protected. The defendants have not placed
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particulars of the names of the members of the family who have got
shares. The particulars of family properties are not furnished. Infact in
evidence they contended that no partition between the defendant No. 1
and his brother had taken place.
20. The defendant No. 1 and his brother had inherited family
properties on the death of their father. In view of the observation of the
Supreme Court in Commissioner of Wealth Tax, Kanpur v. Chander
Sen7 that it would be difficult to hold today that the property which
devolved on a Hindu under Section 8 of the
Page: 3639
Hindu Succession Act would be HUF property in his hand vis-a-vis his
own son, it is still to be decided as to whether the defendant No. 3 and
other members of the family can claim share in the suit property. The
decision in this regard has to be in a suit for partition to be filed by
persons claiming shares and not by the plaintiff. Therefore, to do
justice, specific performance in the present case has to be in respect of
the whole agreement however subject to any right that may be
established in a suit which may be filed for partition by a member of
the family. This aspect had not been considered by the learned Trial
Judge while decreeing the suit for the joint share of the defendant No.
1. Therefore the suit has to be decreed for specific performance as
prayed for.
21. As regards ‘B’ property, the learned Trial Judge has not taken
into consideration the plea of the plaintiff that she was unjustifiably
evicted by the defendants 1 and 2. In fact the written statement of the
defendant Nos. 1 and 2 contains admission that the plaintiff was in
possession of the whole of the ‘A’ schedule property a portion of which
is ‘B’ schedule property. Though the allegation of eviction has been
denied in the written statement, the facts show that the defendant No.
1 had come in possession of the ‘B’ schedule property after the
agreement of sale. Since the plaintiff was in possession of ‘A’ schedule
property at the time of the agreement, subsequent dispossession to the
extent of ‘B’ schedule property gives her a right to ask for restoration of
possession since specific performance is being granted.
22. For the above said reasons, the appeal is allowed and partial
decree granted by the Trial Court is hereby modified granting decree in
favour of the plaintiff as prayed for. The plaintiff shall deposit in the
Page: 3640
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Trial Court within one month herefrom the balance sale consideration
with interest at 6% p.a., from the date of the agreement till deposit.
The L.Rs., of the deceased first defendant, and the third defendant
shall execute the sale deed in terms of the agreement dated 15-02-
1993 in respect of “A” schedule property within two months from the
date of deposit of the balance sale consideration by the plaintiff in the
Trial Court. After execution of the Sale Deed, deposited amount of sale
shall be paid to the executants.
If the defendants mentioned above fail to execute the registered sale
deed within the time, the plaintiff is entitled to get the decree executed
through Court.
In case subsequently, any suit is filed for partition in respect of this
property and other family properties and the appellant is made a party
to such suit, this sale shall be subject to the decision in respect of the
defendant No. 1's share in the family properties in that suit. In the sale
deed to be executed for specific performance of the contract, this fact
shall be specifically mentioned.
The defendants shall hand over vacant possession of “B” schedule
property to the plaintiff within two months from today, failing which the
plaintiff is entitled to get possession by executing the decree. There
shall be permanent injunction in favour of the plaintiff against the
defendants in respect of the remaining portion of “A” schedule property
as prayed for.
The parties shall bear their respective costs.
A decree shall be drawn accordingly.
———
*
RFA No. 450/2000.
1.
(1990) 3 SCC 517 : AIR 1990 SC 854.
2.
JT 2000 (7) SC 483.
3.
AIR 1992 Patna 40.
4.
AIR 1967 SC 574.
5.
(1986) 1 SCC 366 : AIR 1986 SC 79.
6.
AIR 1954 SC 379.
7.
(1986) 3 SCC 567 : AIR 1986 SCC 1753.
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