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Friday, September 23, 2016

Regarding sale of the suit property by Defendants 7 and 8 to Defendant 9, it was held that Defendant 9 admittedly bought the property with the full knowledge of the litigations, and hence, Defendant 9 was not entitled to any equities. ; a purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property.;Suffice it to say, Article 2177 does not prohibit alienation of undivided interest, which is in tune with the principle underlying Section 44 of the Transfer of Property Act, 1882.-“It is not lawful to a co-owner, however, to dispose a specific part of the thing held indivisibly, without the same being allotted to him in partition; and a transfer of the right, which he has to the share belonging to him, may be restricted in accordance with the law.”=In our view, no substantial or grave injustice is caused to the Defendants: on the contrary, the justice of the case, on facts, is in favour of the Plaintiff, and therefore, no interference under Article 136 of the Constitution of India is required. Once, it is found that justice of the case on facts does not require interference, this Court, even at the appellate stage, is well within its discretion to stay its hands off, as held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad[6].

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2910 OF 2013



SYSCON CONSULTANTS P. LTD.                   … APPELLANTS (S)

                                  VERSUS

M/S PRIMELLA SANITARY PROD. P. LTD.
AND OTHERS                                   … RESPONDENT(S)

                                    WITH

                        CIVIL APPEAL NO. 2909 OF 2013
                                    WITH

                        CIVIL APPEAL NO. 2911 OF 2013
                                    WITH

                        CIVIL APPEAL NO. 2912 OF 2013
                                     AND

                  CONTEMPT PETITION (CIVIL) NO. 89 OF 2016
                                     IN

                        CIVIL APPEAL NO.2910 OF 2013


                               J U D G M E N T

KURIAN, J.:




These  appeals  essentially  deal  with  a  dispute  on  the  validity   and
executability of an agreement for sale and once that issue is  tackled,  the
rest are practically not of much significance. The parties are described  as
they are in the suit for specific performance No. 88/1987  on  the  file  of
the Civil Judge Senior Division at  Margao.   The  Plaintiff  is  the  first
respondent herein.  The Plaintiff had sought  for  specific  performance  of
the agreement dated 04.09.1985 made with Defendants 1 to  6  for  conveyance
of the suit property known as Conco situated at village Palolem in  Canacona
Taluka in the State of Goa.  The  7th  Defendant  was  the  Bank  where  the
Defendants had mortgaged the suit property.

In the agreement dated 04.09.1985, the Defendants 1 to 6 claimed  that  they
were the absolute owners of the suit property  and  that  the  property  was
free from all  attachments,  charges,  etc.  The  agreed  consideration  was
Rs.6.5 lakhs and, on  the  date  of  agreement,  Rs.50,  000  was  given  as
advance. The relevant portions of the agreement for sale  dated  04.09.1985,
are extracted below:

“3.The Vendor hereby declares that the said land agreed to be sold  is  free
from any  encumbrance,  attachment,  charge  or  other  claims,  rights  and
demands, and is not affected by any  notice  or  scheme  of  acquisition  or
requisition and that the Vendors have among themselves the  full  power  and
absolute authority to sell and deal with the said land. The Vendor shall  at
his own expense effectually indemnify and keep  indemnified  the  purchasers
from and against all claims, demands, losses, damages,  cost  and  expenses,
if any and whatsoever, sustained, incurred or suffer by the   Purchaser,  on
account of any  defect  in  the  title  of  the  Vendor  or  any  change  or
encumbrance or any scheme of acquisition or requisition affecting  the  land
hereby contracted to be sold.



4. The Purchaser has this day paid to the  Vendor  the  sum  of  Rs.50,000/-
(Rupees fifty thousand only) as and by way of  earnest  money  (the  payment
and receipt whereof the Vendor does hereby admit and acknowledges)  and  the
balance of the purchase money amounting to Rs.6 lacs (Rupees six lacs  only)
shall be paid at the time of the  completion  of  the  sale.  Simultaneously
with the execution of this agreement  the  Vendor  shall  at  his  own  cost
furnish to the Purchasers an abstract of all title deeds  and  other  papers
and writings including copies or extracts from  records  of  the  Talati  or
Circle Inspector relating to the said land.  The  sale  shall  be  completed
within one month from the date of establishment of  a  good  and  marketable
title of the Vendor.”

              xxx              xxx              xxx        xxx

      “6. The Vendor hereby agrees to  answer  all  reasonable  requisitions
and satisfy all objections on title to be made by the  Purchasers  or  their
Solicitor or Representatives. If a good and marketable  title  is  made  out
and the said land is found to be free from all encumbrance, attachments  and
charges and other rights, demands and claims and not effected by any  notice
or scheme of acquisition or requisition  AND  permission  and  no  objection
from any Authority or Authorities, if any, is obtained by  the  Vendor,  the
Vendor will execute a proper conveyance  or  conveyance  in  favour  of  the
Purchasers or their nominee or nominees  or  assigns  in  which  the  Vendor
shall make the other person or persons, if any, join, if necessary, to  pass
and convey an absolute title unto the Purchaser or his nominee  or  nominees
or assigns or to redeem any charge or encumbrances. The  Vendor  shall  bear
and pay all outgoings, expenses and liabilities in respect of the said  land
upto and inclusive of the day of the completion  of  the  sale.  The  Vendor
shall hand over vacant and peaceful possession to the Purchaser of the  said
land at the time of completion of the sale.”
              xxx              xxx              xxx        xxx


“8. If a good and marketable title is not made  out  or  the  said  land  is
found to be subject to any encumbrances  charges  or  attachments  or  other
claims, rights or demands the Purchaser shall be at liberty to rescind  this
Agreement and the Vendor shall  in  the  event  forthwith  refund  the  said
earnest money with interest at 21% per annum.

      9. If the Vendor fails and or neglects to complete the sale after  the
title being made out as aforesaid or otherwise to carry out any one or  more
of the obligations on his part as herein contained or enjoyed  upon  by  any
law for the time being in  force  the  Purchaser  shall  be  at  liberty  to
enforce specific performance of this Agreement or recover the earnest  money
with interest at 21 % per annum.”

                                                         (Emphasis supplied)

 It may be relevant to note that the sale was to  be  completed  within  one
month from the date of establishment of a good and marketable title  of  the
vendor and, if the title was not made out or  in  case  the  said  land  was
found to be subject to any encumbrance or charges or  attachments  or  other
claims, rights or demands, the Plaintiff  was  at  liberty  to  rescind  the
agreement and, in that event,  the  Defendants  1  to  6  would  refund  the
earnest money with interest @ 21 per cent per  annum.  It  was  also  agreed
between the parties that in case the Defendants 1 to 6 fail to complete  the
sale after a good and marketable title is made out,  the  Plaintiff  was  at
liberty to enforce the specific performance of the agreement or recover  the
earnest money with interest @ 21 per cent per annum. It is also  significant
to note that the Defendants 1 to 6 had clearly agreed to give a clear  title
to the property, if necessary by joining any  other  person  or  persons  or
even to redeem any charge or encumbrance.

Defendants 1 to 6 traced their authority to transfer the property to a  deed
of declaration of succession executed by them on 03.11.1981 before a  Notary
Public  as  provided  under  the  Portuguese  Law.  It  was  declared   that
Vishwanata  Purshotam  Sinai  Gaitonde  and  his  wife  Anandibai  Viswanata
Gaitonde died intestate … “leaving their sole and  only  heirs  their  three
children …” and “… there does not exist persons, who, according to law,  may
have preferential right over the said legal heirs or may  concur  with  them
to the estate.” It was further  declared  that  their  parents  …  “left  no
movable properties but  only  an  immovable  property  situated  at  Palolem
Canacona known as Conco” (the suit property).

On account of the Portuguese personal law applicable  in  Goa,  their  wives
also became heirs and thus the agreement for sale  with  the  Plaintiff  was
executed by Defendants 1 to 6.

While the steps for the sale were in progress, Smt. Kishori  Nayak  daughter
of Vishwanata Purshotam Sinai Gaitonde  and  Anandibai  Viswanata  Gaitonde,
real sister of Defendants 1, 3 and 5 raised an objection that she  was  also
entitled to succeed to the estate of her parents  and,  in  particular,  she
was interested in the suit property, and therefore, they should not  proceed
with the sale.

Smt. Kishori Nayak was later impleaded as 7th Defendant in the suit and  her
husband as the 8th. According to the 7th Defendant,  she  had  informed  the
Plaintiff of her objection. But in any case, it has come in the evidence  of
Plaintiff that the 1st Defendant- Shri Gurudas  Gaitonde  had  informed  the
Plaintiff about the objection, by his letter dated 03.04.1987.

In the Special Civil Suit No. 88/87/A filed by the Plaintiff  in  the  court
of Civil Judge Senior Division,  Margao,  the  Plaintiff  claimed  that  the
agreement was enforceable at  the  option  of  the  Plaintiff-purchaser.  To
quote paragraph-7 of the plaint:


“7.   The Plaintiff submits that the said  Agreement  dated  4th  September,
1985 is specifically enforceable at the option of  the  plaintiff,  and  the
plaintiff is entitled to purchase of the suit  property  on  the  terms  and
conditions contained in the said Agreement. In terms of the said  Agreement,
the Defendants no. 1 to 6 are liable to  make  out  a  good  and  marketable
title of  the  suit  property  free  from  all  encumbrances,  restrictions,
charges, claims and demands and  execute  a  proper  conveyance  by  joining
other person or persons thereto, if necessary, to convey an  absolute  title
thereof to the plaintiff.”



At paragraph-14, the Plaintiff has acknowledged the receipt of letter  dated
03.04.1987 from Defendant 1, to treat the agreement as cancelled. Paragraph-
14 reads as follows:
“14.  In the meantime, the plaintiff received a  demand  draft  bearing  No.
OL/A/85 016341 dated 3-4-1987 drawn on State Bank of India for a sum  of  Rs
20,000/- the defendant no. 1 alongwith a letter expressing the intention  of
the defendants no. 1 to 6 to treat the agreement dated 4th  September,  1985
as cancelled.”


Contextually, we may refer to the letter dated 03.04.1987 which is  Exhibit-
PW1/C in the suit. To the extent relevant, the letter reads as follows:

“Dear Shri Malhotra,
      In my letter dated 5.3.87, I have informed regarding my  inability  to
sale of land at Canacona.
      Mr. Bhatnagar called on to me last Thursday. I have  to  explain  also
the position to him. He advised me to sell the  property  and  forget  about
the notice of my sister. He said you are able to face  any  action  from  my
sister’s side, to be frank I am helpless.
      I discussed the issue with lawyer I am told  that  in  any  case  sale
would invite serious litigation and I would not be  left  out  even  if  you
take over this responsibility particularly if my sister exercises her  right
of preemption.
      As you know that I am not keeping well due to  my  heart  problem  and
family litigation will aggravate my health.
      I have thought over this aspect seriously and only you can relieve  me
from this agony.
      As promised in my above letter 5.3.87 I am sending with this letter  a
bank draft for Rs.20,000/-. The balance I shall remit as early  as  possible
kindly bear with me some time. …”

The Plaintiff, however, did not accept the amount but insisted  on  specific
performance.

The suit originally maintained only the following reliefs:
                                            “
That Your Honour may be pleased to pass a decree  for  specific  performance
of contract dated 4th September, 1985 made between the defendants no.  1  to
6 and the plaintiff and direct the said defendants to execute a proper  deed
of Conveyance of the suit property  viz.,  the  property  known  as  “CONCO”
situated at Village Palolem in Canacona Taluka, registered under  No.  14858
and 14859 of Book B-41, F1. 64 (overleaf) in the  Land  Registration  Office
at Margao, Goa  surveyed  under  Survey  No.  119,  Sub-Division  no.  1  of
Nagarsem-Palolem Village and may further  be  pleased  to  direct  the  said
defendants to do all acts, deeds and things for  registration  of  the  said
Deed of Conveyance;

That Your Honour may be pleased to direct defendants no. 1 to 6 to join  the
defendant no. 7 as a confirming party to the said  Deed  of  Conveyance  and
arrange for execution of  the  said  deed  by  the  defendant  no.  7  as  a
confirming party;

For a  decree  of  permanent  injunction  restraining  the  defendants  from
selling, transferring and/or creating  any  encumbrance,  interest,  charge,
restriction, claim or demand on the said property in favour  of  any  person
or persons other than the plaintiff in any manner whatsoever;

For  interim injunction in terms of prayer (c);

For such other further reliefs as Your Honour may deem fit and proper;

For costs as Your Honour may deem fit and proper  in  the  circumstances  of
the case.”




In the written statement filed on 10.02.1988, Defendants 1  to  6  took  the
stand that the sale as per agreement could be performed only “if a good  and
marketable title is made out” and if not, the agreement was rescindable.

The objections on the part of the sister of Defendants 1, 3 and  5  and  her
husband were also brought out in the written statement. To quote:


13. “Sometime in the month of Feb. ’87, sister of defendant No.  1,  3  &  5
and her husband set up  a  claim  to  the  ancestral  property  as  a  whole
including the suit property. On account of this the  defendants  were  in  a
tight corner on the subject of sale of the suit property.  Defendant  No.  1
accordingly wrote  two  letters  one  after  the  other  to  the  plaintiffs
informing them of the defendants’ inability  to  convey  title  as  per  the
agreement. A copy of the defendants letter dated 05.03.87 is annexed  hereto
marked as Exhibit 5. Thereafter on 03.04.87 defendant  No.  1  sent  a  Bank
draft of Rs 20,000/- alongwith a covering letter which is self  explanatory.
Annexed hereto and marked exhibit 6 is a copy of the said letter.

Plaintiffs have suppressed these material facts and as such are  disentitled
for  equitable  relief  of  specific  performance.   Plaintiffs   have   not
approached this Court with clean hands and this suit  therefore  has  to  be
dismissed on this ground alone.”




At paragraph-16 of the written statement, it was  also  disclosed  that  the
attempt on the part of the Defendants 1, 3 and  5  to  purchase  peace  with
their sister did not fructify and that  she  had  filed  a  civil  suit  for
injunction. To quote paragraph-16:


“16.  Defendants did write to the plaintiff’s  lawyer  that  detailed  reply
would be sent as there was attempt from the defendant’s side  to  close  the
issue with the disputant sister and her husband to enable the defendants  to
complete the sale. But unfortunately, the sister Smt. Kishori P.  Nayak  and
her husband, Shri Prabhakant R. Nayak did not settle the issue amicably  and
filed a civil suit in the court  of  the  Civil  Judge  Senior  Division  at
Margao. The said suit is registered as special civil suit no.  105/87/A  and
a civil application filed in the same is  registered  as  Misc.  Application
No. 212/87/A.  The Honourable Court has passed a temporary injunction  order
restraining the defendants from executing sale deed in respect of  the  suit
property in favour of the plaintiffs who are impleaded as  Defendant  no.  7
in the  said  suit.  The  plaintiffs  in  the  said  suit  have  inter  alia
challenged the enforceability and legality of the  agreement  dated  4.09.85
which is the subject matter of this suit also.


Defendants 1 to 6 herein state and submit  that  for  proper  and  effective
adjudication of this suit Smt. Kishori Prabhakant Nayak and Shri  Prabhakant
R. Nayak should be added in this suit as defendants as they have  leveled  a
challenge to the enforceability of the agreement sought to  be  specifically
enforced in this suit by the plaintiff herein.”



In short, Defendants 1 to 6 wanted the suit to be dismissed in view  of  the
objection of Smt. Kishori Nayak.

It may be noted that Defendant 7 originally was the  Cooperative  Bank  with
whom the suit property had been mortgaged; but it appears  on  clearing  the
loan, the Bank was deleted and thereafter Smt. Kishori Nayak  was  impleaded
as Defendant 7 and her husband Shri Prabhakant Ramrai Nayak as Defendant  8.


Special Civil Suit No. 105/1987/A was filed  by  Smt.  Kishori  Nayak,  real
sister of Defendants 1, 3 and 5 and her husband  Shri  Prabhakant  R.  Nayak
before the Civil Judge Senior Division, Margao against  Defendants  1  to  6
and the Plaintiff. It was a suit for declaration,  permanent  and  temporary
injunction. It was stated in the plaint that apart from  the  suit  property
of Civil Suit No. 88/1987, five other  items  of  property  were  also  left
intestate. It was averred  that  the  agreement  of  sale  of  any  property
without the sister  and  her  husband  is  null  and  void.  To  quote  from
paragraph-7:


“7.   Plaintiffs state that the defendants no. 7  is  a  company  which  has
entered into an agreement to sell the suit property with  defendant  nos.  1
to 6 on the 4th of September, 1985,  which  agreement  is  impugned  herein,
ignoring the legal rights  of  the  plaintiffs  to  the  suit  property,  in
collusion with one another and are about to execute the deed  of  conveyance
and as such the plaintiffs are compelled  to  file  the  suit  to  seek  the
assistance of this Hon’ble Court by an appropriate order of declaration  and
permanent injunction restraining the defendant number 1 to  6  from  in  any
manner alienating and/or executing any  deed  of  conveyance  or  any  other
instrument of transfer of possession of the suit property  to  the  name  of
the defendant  no.  7  in  pursuance  of  the  impugned  agreement  to  sell
allegedly entered into  on  4th  September  1985  declaring  that  the  said
agreement is ab-initio null and void ad hence unforceable specifically.”




Again, at paragraph-9, it has been averred that:


“9.   Plaintiffs state that they being co-sharers and co-owners of the  suit
property as aforesaid the defendant nos. 1 to 6 had no authority in  law  to
negotiate the said deal without their consent and knowledge  with  defendant
no. 7 and on this count alone the  alleged  agreement  to  sell  and/or  the
alleged deed of sale dated 4th December  1985  is  ab-initio  void  and  the
plaintiff’s are entitled in law for such a declaration.”




At paragraph-14, it was averred that the entire properties,  left  intestate
being ancestral, the same are to be divided only as per  Portuguese  Law  of
Succession through inventory proceedings. To quote from paragraph-14:


“14.  Plaintiffs state that their share in the ancestral  suit  property  is
undivided and indivisible till the suit property as well as other  ancestral
properties  are  auctioned  in  appropriate  inventory  proceedings  to   be
initiated under the Portuguese Law of Succession and till the shares of  the
heirs are ascertained and as such the suit property or any part of the  same
cannot be sold as  contemplated  under  the  agreement  of  sale  dated  4th
September 1985 in exclusion to them.  Plaintiffs  state  that  even  if  the
inventory  proceedings  are  initiated  and  the  properties  are  auctioned
amongst the members of the family,  they  are  entitled  to  exercise  their
right of preemption and under the prevailing  law  of  succession  governing
this land.”




Though there had been several other  developments  in  between,  it  is  not
necessary to refer to those aspects. Suffice to note that in  the  meantime,
inventory proceedings were initiated before the same court  of  Civil  Judge
Senior Division at Margao at the instance of  Defendants  7  and  8  namely,
Smt. Kishori P. Nayak and her husband Shri Prabhakant R. Nayak.  Paragraphs-
 1 to 4 of the petition being relevant are extracted herein:


“1.   The applicants are the daughter and son-in-law of the  Late  Visvonata
Purxotoma Sinai Gaitonde and the late Anandibai  V.  Gaitonde  who  died  on
26.10.1966  and  25.06.1976  respectively.  Hereto  annexed  are  the  death
certificates.

2.    The deceased left behind their  heirs,  their  three  sons  and  their
daughter, the applicant no. 1 herein.

3.    The estate of the deceased has not yet been partitioned and  continues
undivided.


4.    The son of the deceased, Mr. Ratnakar  Vishwanath  Gaitonde,  resident
of  Vishwanath  Sunirti,  Super  Market,  Ponda,  Goa  is  competent  to  be
appointed as Cabeca de casal, he being the eldest son of the deceased.”



In the inventory proceedings, the auction  took  place  on  01.12.1990.  The
suit property was auctioned by the 7th Defendant-  Smt.  Kishori  Nayak  and
the remaining estate was also divided amongst the other heirs and the  final
orders in the inventory proceedings was passed by  the  Civil  Judge  Senior
Division, Margao on 30.01.1991.

The  Plaintiff,  thereafter,  filed  Civil  Suit  No.  329/1992  seeking   a
declaration that inventory proceedings were vitiated by fraud to the  extent
of allocation of suit property to the 7th Defendant Smt. Kishori  Nayak  and
her husband and for setting aside the inventory proceedings.

In the meantime, the Cooperative  Bank  initiated  recovery  proceedings  by
putting the suit property to public auction. The Bank obtained an award  and
published the proclamation for the sale  of  the  suit  property  by  public
auction. On 10.01.1989, the Defendants 7  and  8,  hence,  filed  a  Regular
Civil Suit No. 3/1989/B for injunction restraining the bank from  proceeding
with the sale. That suit was  decreed  as  compromised  on  23.04.1992.  The
relevant paragraphs from the decree read as follows:

“5. In such circumstances, the  plaintiff  was  though  legally  not  bound,
morally feels her obligation not to put in jeopardy   the  interest  of  the
Bank, therefore  she  guarantees  the  payment  of  the  debt  to  the  Bank
(defendant no. 2) reserving her right to recover the amount  from  defendant
no. 1 (Smt. Sunita Gaitonde)”

              xxx              xxx              xxx        xxx

“9. The plaintiff further agrees that in the event the  plaintiff  fails  to
pay the  entire  liability  within  a  period  of  15  (fifteen)  days,  the
defendant no. 2 is free to sell the suit property  in  auction  and  realize
from the proceeds of the auction sale the  amount  of  loans,  interest  and
other charges with clear understanding that the asset  value  shall  not  be
less than the amount of principal and interest and other charges.”

                                                         (Emphasis supplied)



The Defendants 7 and 8 did not make any payment to the Bank so as  to  avert
the distress sale of the suit property and neither did Defendants  1  to  6.
The Defendants 7 and 8 in the compromise decree had gone to  the  extent  of
giving up all hopes by agreeing that in case, they failed to pay  the  dues,
the suit property could be sold but the only condition  was  that  the  sale
amount should cover the entire liability arising out of the  loan  including
interest and other charges meaning  thereby  that  they  were  worried  only
about saving other assets.  It  is  at  that  juncture  that  the  Plaintiff
cleared the entire liability on payment of Rs. 17 lakh on 12.05.1993.  Thus,
the distress sale was averted, the mortgage was redeemed and the  charge  on
the property was released

The Defendants 7  and  8  filed  a  writ  petition  before  the  High  Court
challenging the  proceedings  of  the  Assistant  Registrar  culminating  in
redemption of mortgage. The Writ Petition was disposed of by judgment  dated
10.10 1994, stating :

“Respondents Nos. 4 to 10 mortgaged a property to respondent No.2, Bank  and
took certain loan. The amount was not paid by them. Respondent  No.2,  Bank,
obtained the said certificate and started recovery proceedings in which  the
property was put to  sale.  At  the  time  of  the  sale,  respondent  no.1,
claiming interest in the property on the basis of some  Agreement  of  Sale,
allegedly executed by respondents Nos. 4 to 10  in  their  favour  paid  Rs.
17,00,000/- to the Recovery Officer, as  a  result  of  which  the  Recovery
Officer stopped the sale and directed the  redemption  of  the  mortgage  in
favour of Respondent Nos. 4 to 10.

2.     The present petitioners claimed some  title  to  the  property  under
inventory proceedings in 53/90/A. They were not  parties  to  the  mortgage,
nor they are members of respondent Nos. 2 Bank. They  challenged  the  order
passed by the Recovery Officer on the ground that  the  amount  tendered  by
the respondent No.1 could not have been accepted  by  the  Recovery  Officer
for the purpose  of  passing  an  order  of  redemption  in  favour  of  the
mortgagors. If at all such an order  was  wrongly  passed  by  the  Recovery
Officer  the  person  to  be  prejudiced  would  have  been  the  Bank.  The
mortgagors as well as the Bank did not have any grievance on the point.

3.     Grievance is sought to be raised by a third  party,  who  has  hardly
any locus standi in a proceeding under Rule 104 because the petitioners  had
never offered to pay any amount, nor had they ever paid anything, either  to
the Bank, or to the Recovery Officer. Under such circumstances,  we  do  not
think  that  the  impugned  order  is  against  justice,  equity  and   good
conscience.

4. Needless to say that if  the  petitioners  claiming  mere  title  to  the
property have some rights to the property in  question.  They  would  be  at
liberty to pursue their rights  according  to  law.  Petition  is  therefore
disposed of.”

                                                         (Emphasis supplied)



Meanwhile, the Plaintiff’s suit was dismissed for default on 18.09.1990  and
was ultimately restored only on 05.02.1994. Thereafter the suit was  amended
and Smt.  Kishori  Nayak  and  her  husband  were  impleaded  as  additional
Defendants, in 1998.

Additional reliefs for compensation  to  the  tune  of  Rs.12,29,030.80  and
Rs.2,68,29,038.80 were added. The challenge  to  the  inventory  proceedings
was also incorporated by way of the amendment.

On  14.11.1995,   the   7th   and   8th   Defendants,   viz.,   the   sister
      Smt. Kishori and her husband, who had obtained the  suit  property  in
the inventory  proceedings,  sold  the  same  to  the  9th  Defendant-Syscon
Consultants  Pvt.  Ltd.  Thereafter,  the  Plaintiff  sought  amendment  for
cancelling that  sale  also.  It  may  be  stated  that  the  9th  Defendant
purchased the suit property for a sum of Rs. 34,00,000/- knowing fully  well
that the said property was in  litigation  and  the  fate  of  some  of  the
litigations.

Though, there were  certain  other  factual  aspects  as  well,  it  is  not
necessary to refer to the same. Suffice it to  note  that  Civil  Suit  Nos.
88/1987 and 105/1987 were tried together as per  orders  of  High  Court  of
Bombay  dated  19.04.1990  in  Appeal  from  Order  No.  54/89  with   Civil
Application No. 192/89.

By common judgment dated 31.12.2001, the Trial Court disposed of both  suits
upholding the right of 7th and 8th Defendants (the sister and her  husband).
The Defendants 1 to 6  were  directed  to  refund  the  advance  of  Rs.  50
thousand with interest @ 21 per cent per annum from the date of  institution
of the suit to the Plaintiff and further Defendants 1 to 8 were directed  to
refund an amount of Rs.17 lakhs to the Plaintiff with interest @ 6 per  cent
per annum from 12.05.1993.

Aggrieved, the Plaintiff filed First Appeal No.  179/2003  before  the  High
Court of Judicature at Bombay, Panaji Bench, Goa.  During  the  pendency  of
the appeal, on 08.10.2003, the entire decree  amount  was  deposited  before
the High Court.

As per the impugned judgment, the High Court allowed  the  appeal  in  part,
and partly reversed the trial court judgment therein. To the extent  of  the
share of Defendants 1 to 6, in the suit  property,  the  suit  was  decreed.
Defendants 1 to 6 were permitted to withdraw the amount deposited  in  court
after the decree was  being  fully  satisfied.  Thus,  the  appeals  at  the
instance of the Defendants and one by the Plaintiff for the 1/4th  share  of
Defendants 7 and  8  and  another  at  the  instance  of  Defendant  9,  the
purchaser.

Being a first appeal, the High Court has in fact dealt with  the  issues  as
framed by the Trial Court. The following  were  the  issues  framed  by  the
Trial Court and their findings:
|“ISSUES                      |FINDINGS                  |
|(1)Whether the plaintiff     |Negative                  |
|proves that the plaintiff is |                          |
|entitled for specific        |                          |
|performance of contract dated|                          |
|4.9.85?                      |                          |
|(2) Whether the plaintiff    |Negative                  |
|proves that order in         |                          |
|Inventory Proceedings        |                          |
|No.55/90/A is liable to be   |                          |
|vitiated as obtained by fraud|                          |
|and also illegal to the      |                          |
|extent of allotment of the   |                          |
|suit property to the         |                          |
|defendant No.7?              |                          |
|(3) Whether the plaintiff    |Negative                  |
|proves that the defendants   |                          |
|No. 7 and 8 lost right of    |                          |
|preemption, even if they had |                          |
|the said right under law?    |                          |
|(4) Whether the plaintiff    |Negative                  |
|proves that the defendants   |                          |
|No. 1 to 6 are liable to pay |                          |
|to the plaintiff a sum of    |                          |
|Rs.12,29,030.80 as           |                          |
|compensation for breach of   |                          |
|contract in addition to the  |                          |
|specific performance?        |                          |
|(5) Whether the plaintiff    |Partly in affirmative     |
|proves that defendants No.1  |                          |
|to 6 are also liable to pay  |                          |
|to the plaintiff compensation|                          |
|of Rs.2,68,29,038.80 in lieu |                          |
|of specific performance?     |                          |
|(6) Whether the defendants   |Affirmative               |
|No.7 and 8 prove that they   |                          |
|have right of preemption in  |                          |
|respect of the suit property |                          |
|and that the agreement dated |                          |
|4.9.85 entered between the   |                          |
|plaintiff and the defendant  |                          |
|nos. 1 to 6 is null and void?|                          |
|(7) Whether the defendants   |Affirmative               |
|No.7 and 8 are justified in  |                          |
|selling the suit property to |                          |
|the defendant No.9 within    |                          |
|their own rights?            |                          |
|(8) What relief? What order? |As per law.”              |


On issue no.1, the High Court took the view:

“107. … Respondent Nos. 1  to  6  never  objected  per  se  to  perform  the
agreement. They, to put it mildly,  expressed  their  inability  to  perform
even their part of the agreement on the  ground  that  Respondent  No.7  had
raised a claim as regards her one-fourth share in the property.  Their  bona
fides are, therefore, put to the test when the Appellant submitted  that  it
was willing to accept at least or even the share of the  Respondent  Nos.  1
to 6 in the suit property without  claiming  any  reduction  in  the  price.
Surely, Respondent Nos. 1 to 6 then cannot have any objection whatsoever  to
a decree to the extent of their share in the suit property.”



Regarding sale of the suit property by Defendants 7 and 8  to  Defendant  9,
it was held that Defendant 9 admittedly bought the property  with  the  full
knowledge of the litigations, and hence, Defendant 9  was  not  entitled  to
any equities. Thus, issue no. 1 was answered in the  affirmative  in  favour
of the Plaintiff, limited to the extent of share of Defendants 1 to 6.

On issue no.2, the High Court  was  of  the  view  that  the  Plaintiff  was
deliberately kept in the dark about the inventory proceedings. It  was  also
noted by the High Court that despite granting time to  produce  evidence  on
the relinquishment of their rights by Defendants 7 and 8, nothing was  done.
It was further noted that the Inventory Court was not informed of  the  deed
of declaration or about the agreement in litigation or  about  the  mortgage
of the suit property to the Cooperative Bank. None  of  Defendants  led  any
evidence.  The  Plaintiff  was  denied  an  opportunity  in  the   inventory
proceedings to protect their interest. The  High  Court  further  held  that
even  assuming  that  the   inventory   proceedings   were   not   conducted
fraudulently, the orders passed therein could not bind the Plaintiff  as  it
was not a party thereto.

On issue no.3, it was held that since Defendants 7 and 8  did  not  exercise
their right of preemption, they lost their right. And, on issue  no.  6,  it
was held that the suit agreement dated  04.09.1985,  between  the  Plaintiff
and Defendants 1 to 6 was legally valid and not void.

On issue no.4, regarding  compensation,  the  Court  though  held  that  the
Plaintiff was entitled to damages, but  no  decree  was  granted  since  the
Plaintiff made a statement that in case specific performance was granted  it
would not insist on a decree for compensation.

On issue no.7, it was held that Defendants 7 and 8  were  entitled  to  sell
only one quarter interest in the suit property and  not  the  three  quarter
interest of Defendants 1 to 6 and the suit was  decreed  accordingly.  There
was no separate decree in the suit filed by Defendants 7 and 8.

A suit for specific performance, being a suit  for  equitable  relief,  this
Court has the duty to see what ultimately is the justice of  the  case.  The
suit property, no doubt is jointly owned by  Defendants  1  to  8.  But  the
agreement for sale was only  by  the  Defendants  1  to  6.  They  not  only
excluded the sister and her  husband  but  made  two  deliberate  and  wrong
representations: that Defendants 1, 3 and 5 are the only  children  of  Late
Vishwanta Purshotam Sinai Gaitonde and that the suit property was  the  only
estate left by their parents. The agreement  for  specific  performance,  no
doubt, contained a clause that the sellers would make a good and  marketable
title of the property. Fully conscious of the fact that  there  was  another
heir namely the sister and that the property had already been  mortgaged  to
the Cooperative Bank, a very significant  clause  was  incorporated  in  the
agreement to the effect that the vendors could execute a  proper  conveyance
in favour of the purchasers and in that regard, the vendors would  make  any
other person or persons to join them so as to convey an  absolute  title  to
the purchaser or to redeem any charge or encumbrance.  This  clause  clearly
shows that the Defendants 1 to 6, though acted ill-advisedly by not  joining
the sister and her husband in  the  agreement  and  by  not  disclosing  the
mortgage, had still genuinely intended to execute  the  sale  covering  both
the eventualities namely, joining the sister and her husband  and  redeeming
the  mortgage  (see  Clause  6  of  the  Agreement  of  Sale  extracted   at
pages 3-4).

At one stage, Defendants 1 to 8  apparently  were  sailing  together,  faced
with the distress sale of the suit property by the  bank.  It  was  in  that
context that the Defendants 1 to 6 made a request to the Plaintiff  that  in
case the Plaintiff cleared the loan liability, they would get in the  sister
also for the conveyance of the property and settle the  whole  dispute.  The
letter  which is Exhibit- PW1/F in  the  suit,  which  is  dated  14/11/1991
reads as follows:
                       “Sale of Property at Canacona.
Further to the discussion of the undersigned with your  Shri  A.A.  Tandale,
this is to confirm that the undersigned and all his brothers and sister  are
agreeable to settle the dispute with you amicably on the following terms:

You should pay off the entire loan outstanding with the  Madgaon  Urban  Co-
op. Bank.

All the parties jointly including the bank shall take a consent decree  from
the Court and put an end to litigation.

Upon completion of the above steps, we shall execute deed of  conveyance  in
your favour.

      We expect your  co-operation  in  implementing  this  compromise  with
maximum expedition.

      This is however without prejudice to our  rights  and  contentions  in
the pending suits.”



Thereafter,  Defendants  1  to  6  left  the  Plaintiff  to  their  fate  by
permitting the auction sale  to  take  place  and  consequently  wanted  the
agreement to get frustrated.

 As far as Defendants 7 and 8 are concerned, they  not  only  went  back  on
their undertaking in Court to pay the dues to the bank so as  to  avert  the
auction sale, they have not pursued their claim if any, to the title to  the
property as per the liberty granted to them by judgment dated 10th  October,
1994 of the High Court in Writ Petition No. 277  of  1994.  The  High  Court
apparently was clear in its mind, that if at all Defendants 7 and  8  wanted
to save the situation by exercising their  right  to  preemption  under  the
Portuguese Laws, they could still do that within six months.   Yet,  nothing
was done. In any case,  more  than  six  months  after  the  judgment  dated
10.10.1994, they sold the suit property on 14.11.1995 when as  a  matter  of
fact Defendants 1 to 8  had  by  their  conduct  forfeited  all  rights  and
interests in respect of the suit property. Thus, there  is  no  question  of
right of preemption available to Defendants 7 and 8.

It may not also be wholly out of context to take note of the fact  that  the
Defendants 7 and 8 chose, with the assent  of  Defendants  1  to  6  in  the
inventory proceedings, the suit property, fully knowing  that  the  property
was disputed. Normally, one would avoid  a  disputed  property  or  leave  a
disputed property to the authors of the dispute, i.e., the brothers in  this
case. It would also be relevant to note that  none  of  the  Defendants  1-8
told the District Judge in the inventory proceedings that the  property  was
already in dispute, and that two civil suits were  pending,  in  which  case
the District Judge would have certainly taken note of the litigation.

Under the agreement, the time for performance starts within one  month  from
the date of the vendors making out a marketable title to the  property.  The
agreement also contained a provision to join any other person or persons  to
convey an absolute title to the purchasers or for  redeeming  any  mortgage.
And thus, the suit by the Plaintiffs originally had  the  Bank  as  a  party
Defendant, and, after clearing the loan,  the  Bank  was  deleted  from  the
array of parties and Smt. Kishori and her husband were joined as  Defendants
7 and 8.

It    was    vehemently    contended    by    learned     Senior     Counsel
Shri Dhruv Mehta that it was not  necessary  to  give  notice  of  inventory
proceedings to anybody  other  than  the  members  of  the  family  who  are
entitled to succeed to the estate or disclose any charge  on  the  property.
We are afraid that this submission cannot be appreciated. So long  as  there
is no bar for transferring the undivided interest in the estate  by  any  of
the legal heirs, any charge or liability  to  the  estate  was  also  to  be
disclosed  in  the  inventory  proceedings  so  that  the  estate  could  be
partitioned taking note of such charges, and  in  case  of  litigation,  the
proceedings would have awaited the outcome thereof.

Defendants 7 and 8, viz., Smt. Kishori and her husband knew very  well  when
they instituted the inventory proceedings that there was  an  agreement  for
sale of one of the items in the estate executed by her  brothers  and  their
wives and that a  suit  for  specific  performance  of  that  agreement  had
already  been  pending  in  Court.  And   yet,   it   was   not   disclosed.
Interestingly, and if not shockingly, the Defendants 1 to  6  also  did  not
disclose before the court in the inventory proceedings  anything  about  the
mortgage to the bank. Thus, in  any  case,  Defendants  7  and  8  had  full
knowledge of the suit for specific performance and  also  the  liability  to
the Cooperative Bank when they chose the disputed property  as  their  share
in the inventory proceedings and yet, they were not prepared to  even  clear
the liability to the Cooperative Bank. It was the  Plaintiff  who  paid  the
money and averted the auction  sale  and  redeemed  the  property.  Had  the
Plaintiff not cleared the dues to the Bank, the  property  would  have  been
auctioned, divesting Defendants 7 and 8 of their  rights  and  interests  in
the property.

The issue of lis pendens, in any case, on facts, is clear in the sense  that
even assuming for argument’s sake that Civil  Suit  No.  88  of  1987  stood
dismissed at the time of the order in the inventory proceedings, Civil  Suit
No. 105 of 1987 in respect of the same property, wherein a  declaration  and
injunction had been sought by Defendants 7 and 8  (Plaintiffs  in  Suit  No.
105 of 1987), was pending. Both suits were directed to be tried together  as
well. It is significant to note that  there  was  only  one  set  of  issues
framed for the purpose of trial of both suits. It  is  also  significant  to
note that even according to Defendants 1 to 6 in  their  written  statement,
their stand was:

“….The  plaintiffs  in  the  said  suit  have  inter  alia  challenged   the
enforceability and legality of the agreement  dated  4.09.85  which  is  the
subject matter of this suit also…”



      The inventory proceedings,  thus,  would  have  been  subject  to  the
result of the suits. As far as the transfer of property to  Defendant  9  is
concerned, the Plaintiff’s Suit for Specific  Performance  No.  88  of  1987
stood restored and its Suit No. 329  of  1992  stood  pending  on  the  date
(14.11.1995) when Defendant 9 purchased the suit property which  would  also
be subject to the result of the pending suits.

In view of the conduct of the parties, which we have explained above, we  do
not  think  that  this  is  a  fit  case  to  exercise   our   discretionary
jurisdiction  under  Article  136  of  the  Constitution  of  India.   Three
prominent features of this case stare us in the face.  First  and  foremost,
on reading the correspondence between the parties,  we  are  satisfied  that
the  Plaintiff  has  throughout  been  ready  and  willing  to  perform  its
obligations under the Agreement to Sell. In particular, a reference  may  be
made to the letters dated 08.04.1986 and 15.04.1987  and  the  legal  notice
dated 08.04.1987. The other unique feature of this case  is  that  the  suit
property is an island off the coast of Goa which is not readily  capable  of
valuation – indeed when asked to give us  the  present  market  value,  both
sides were unable to do so. This fact also shows that monetary  compensation
would not suffice and be an adequate alternative to specific performance.

The third unique feature of this case is  that,  as  has  been  pointed  out
hereinabove, the Plaintiff went to the extent of  discharging  the  mortgage
with the Bank by paying a sum of Rs. 17 lakhs  which was almost three  times
the amount of the  consideration  mentioned  in  the  agreement,  i.e.,  Rs.
6,50,000/-. Clause 9 of the Agreement to Sell is set out hereunder:-

“If the Vendor fails and or neglects to complete the sale  after  the  title
being made out as aforesaid or otherwise to carry out any  one  or  more  of
the obligations on his part as herein contained or enjoyed upon by  any  law
for the time being in force the Purchaser shall be  at  liberty  to  enforce
specific performance of this Agreement or recover  the  earnest  money  with
interest at 21% per annum.”



It is clear that Defendants 1 to 6 failed or neglected to complete the  sale
even after clear title was made out when the obstacle of  the  mortgage  was
removed. Clause 9 specifically states that if after the title is  made  out,
the vendor fails and neglects to complete the sale, and/or to carry out  any
of the obligations on his part as contained in the Agreement, the  purchaser
shall be at liberty to enforce specific  performance  of  the  Agreement  or
recover the earnest money with interest at 21 per cent per  annum  at  their
option. Having clearly opted throughout to enforce specific performance,  we
are of the view that justice of the case requires  that  Clause  9  must  be
applied in favour of the Plaintiff.  After inducing the plaintiff as per PW-
1/F letter to pay Rs.17 lakhs to the cooperative bank to clear the  dues  on
the clear understanding that the defendants 1 to 8 would thereafter  execute
the sale deed, they cannot go back.  The clear title stood made out at  that
stage and the agreement was enforceable thereafter.

There is also a long line of judgments  based  on  the  equitable  principle
which states that even if the undivided share of one of the other  heirs  of
the property cannot be transferred, the remaining share of the  other  heirs
certainly can be transferred.

In Kartar Singh v. Harjinder Singh and others[1],  at  paragraph-6,  it  has
been held that :

“6. As regards the difficulty pointed out by the High  Court,  namely,  that
the decree of specific performance cannot  be  granted  since  the  property
will have to be partitioned, we are of the view that this  is  not  a  legal
difficulty. Whenever a share in the property is sold the vendee has a  right
to apply for the partition of the property and get the share demarcated.  We
also do not see any  difficulty  in  granting  specific  performance  merely
because the properties are scattered at different places. There  is  no  law
that the properties to be sold must be situated at  one  place.  As  regards
the apportionment of  consideration,  since  admittedly  the  appellant  and
respondent's  sister  each  have  half  share   in   the   properties,   the
consideration can  easily  be  reduced  by  50%  which  is  what  the  First
Appellate Court has rightly done.”



In Sardar Singh v. Krishna Devi (Smt) and another[2],  at  paragraph-17,  it
has been held that:

“17. In view of the finding  that  the  appellant  had  half  share  in  the
property contracted to be sold by Kartar Lal, his brother, the agreement  of
sale does not bind the appellant. The decree  for  specific  performance  as
against Kartar Lal became final. Admittedly the respondent and  her  husband
are neighbours. The appellant and  his  brother  being  coparceners  or  co-
owners and the appellant after getting the tenant ejected both the  brothers
started living in the house. As a prudent purchaser Joginder Nath  ought  to
have made enquiries whether Kartar Lal had exclusive title to the  property.
Evidence of mutation of names in the  Municipal  Register  establishes  that
the property was mutated in the joint names of the appellant and Kartar  Lal
and was in joint possession and  enjoyment.  The  courts  below,  therefore,
have  committed  manifest  error  of  law  in  exercising  their  discretion
directing specific performance of the contract of the entire  property.  The
house being divisible and the appellant being not a consenting party to  the
contract, equity and justice demand partial  enforcement  of  the  contract,
instead of refusing specific performance in its entirety, which  would  meet
the  ends  of  justice.  Accordingly  we  hold  that  Joginder  Nath  having
contracted to purchase the property, it must be referable  only  in  respect
of half the right, title and interest held by Kartar Lal,  his  vendor.  The
first respondent being  successor  in  interest,  becomes  entitled  to  the
enforcement of the contract of the half share by specific  performance.  The
decree of the trial court is confirmed only to the extent of half  share  in
the aforestated property. The appeal is accordingly allowed and  the  decree
of the High Court is set aside and that of the trial court  is  modified  to
the above  extent.  The  parties  are  directed  to  bear  their  own  costs
throughout.”



In A. Abdul Rashid Khan (Dead) and  others  v.  P.A.K.A.  Shahul  Hamid  and
others.[3], at paragraph-14, it has been held that:

      “14. Thus we have no hesitation to hold, even where  any  property  is
held jointly, and once any party to the contract has  agreed  to  sell  such
joint property agreement, then, even if other co-sharer has  not  joined  at
least to the extent of his share, he is bound to  execute,  the  sale  deed.
However, in the absence of other co-sharer there could not be any decree  of
any specified part of the property to be partitioned and  possession  given.
The decree could only be to the extent of  transferring  the  share  of  the
Appellants in such property to other such contracting party. In the  present
case, it is not in dispute  that  the  Appellants  have  5/6  share  in  the
property. So, the Plaintiffs suit for specific performance to the extent  of
this 5/6th share was rightly decreed by the High  Court  which  requires  no
interference.”





In Surinder Singh v. Kapoor Singh (Dead)  Through  Lrs.  and  others[4],  at
paragraphs- 3 and 20, it has been held that:

“3. A Letters Patent  Appeal  filed  by  the  Plaintiffs-Respondents  herein
against the said judgment and decree came to be allowed by a Division  Bench
of the High Court by reason of the impugned judgment  holding  that  as  the
property was owned by the Appellant and the  said  Tajinder  Kaur  in  equal
share, in view of Kartar Singh (supra), a decree  for  specific  performance
could be granted in favour of the Plaintiffs-Respondents herein  in  respect
of the share of the Appellant subject to his right to  apply  for  partition
of the property for getting his share demarcated.  As  regard  apportionment
of the sale consideration, it was directed that the same  would  be  reduced
by 50% as the Appellant would  only  be  entitled  thereto.  As  regard  the
objection of the Appellant herein that no relief could  be  granted  as  the
plaintiffs-Respondents failed to mention Khasra Nos. 39/4 and 39/3/2 in  the
plaint, the Division Bench held that such omission was inadvertent.  It  was
pointed out that such an objection was raised only at the time  of  argument
whereupon the plaintiffs filed an application for amendment  of  plaint.  It
was held:


"...We are of the view that the trial court was not justified in  dismissing
the application on technical grounds. Decree was sought for the entire  land
i.e. 153 K 19M. Copies of  the  agreement  as  well  as  jamabandi  for  the
relevant year were also attached with  the  plaint.  Agreement  as  well  as
jamabandi clearly indicate that relief sought was with regard  to  the  land
measuring 153 K 19M which also includes Khasra  Nos.  39/4  and  39/3/2.  In
this view of the matter, prayer of  the  plaintiffs  for  amendment  of  the
plaintiff is allowed. Plaint would be deemed to have  included  Khasra  Nos.
39/4 and 39/3/2 apart from other Khasra numbers mentioned in the plaint."




                    xxx         xxx        xxx        xxx


20.  The  Appellant  furthermore  misled   the   plaintiffs-respondents   by
representing that he had the requisite authority to enter into an  agreement
for sale on behalf of his sister, which was found to be incorrect.  In  this
situation, we are of the view that the equity lies in  favour  of  grant  of
decree for specific performance of the contract in respect of the  share  of
the Appellant rather than refusing the same. In any event if  the  Appellant
and/or his sister have claim as regard the arrears of rent, the same can  be
adjudicated upon by the appropriate court in an appropriate  proceeding.  We
are, therefore, unable to accept the said contention of Mr Talwar.”




In Gajara Vishnu Gosavi  v. Prakash  Nanasaheb  Kamble  and  others.[5],  at
paragraphs- 9 to 13, it has been held that:
“9. Be that as it may, three courts have recorded  the  concurrent  findings
of fact that partition had never been given effect  to  in  respect  of  the
suit property.  Therefore,  Housabai  could  transfer  her  share.  But  the
question does arise as to whether without partition  by  metes  and  bounds,
she could put her vendee Anjirabai in possession.

10. In Kartar Singh v. Harjinder Singh (1990) 3 SCC 517 : AIR 1990  SC  854,
this Court held that where the shares are separable and a party enters  into
an agreement even for sale of share belonging to  other  co-sharer,  a  suit
for specific performance was maintainable at least  for  the  share  of  the
executor of the agreement, if not for the share of other co-sharers. It  was
further observed:

“6. As regards the difficulty pointed out by the High  Court,  namely,  that
the decree of specific performance cannot  be  granted  since  the  property
will have to be partitioned, we are of the view that this  is  not  a  legal
difficulty. Whenever a share in the property  is  sold,  the  vendee  has  a
right to apply  for  the  partition  of  the  property  and  get  the  share
demarcated.”

11. In a recent judgment in Ramdas v. Sitabai and Ors. (2009) 7  SCC  444  :
JT (2009) 8 SC 224 to which one of us (Dr. B.S.  Chauhan  J.)  was  a  party
placing reliance  upon  two  earlier  judgments  of  this  Court  in  M.V.S.
Manikayala  Rao  v.  M.  Narasimhaswami  and  Ors. AIR  1966  SC  470;   and
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh  and  Ors. AIR  1953
SC 487 this Court came to the conclusion that a purchaser of a  coparcener's
undivided  interest  in  the  joint  family  property  is  not  entitled  to
possession of what he had  purchased.  He  has  a  right  only  to  sue  for
partition of the property and ask for allotment of his  share  in  the  suit
property.

12. There is another aspect of the matter. An  agricultural  land  belonging
to the coparceners/co-sharers may be in their joint possession. The sale  of
undivided share by  one  co-sharer  may  be  unlawful/  illegal  as  various
statutes put an embargo on fragmentation of holdings  below  the  prescribed
extent.

13. Thus, in view of the above, the law emerges to  the  effect  that  in  a
given case an undivided share of a coparcener can be  a  subject  matter  of
sale/transfer, but possession cannot be handed over  to  the  vendee  unless
the property is partitioned by metes and bounds, either by the decree  of  a
Court in a partition suit, or by settlement among the co-sharers.”


The vehement contention, advanced  by  learned  Senior  Counsel  Shri  Dhruv
Mehta, based on Article 2177 of the Portuguese Civil Code, 1867  that  there
was an absolute bar for transfer of any portion of the estate or a  specific
item of the estate, need not detain us both on  account  of  factual  matrix
and on law. As  we  have  already  noted  hereinabove,  Defendants  1-8  had
already given up on their right in the suit property by not taking steps  to
avoid the distress sale at the instance  of  the  Bank.  Though,  there  are
different translated versions of the provision, we may extract Article  2177
as provided by Defendants 7 and 8 in their Appeal:

“It is not lawful to a co-owner, however, to dispose a specific part of  the
thing  held  indivisibly,  without  the  same  being  allotted  to  him   in
partition; and a transfer of the right, which he has to the share  belonging
to him, may be restricted in accordance with the law.”



Suffice it to say, Article 2177 does not prohibit  alienation  of  undivided
interest, which is in tune with the principle underlying Section 44  of  the
Transfer of Property Act, 1882.

The conduct of the  Defendants  7  and  8  also  needs  to  be  specifically
commented on. Despite specifically getting reserved  a  liberty  to  proceed
further after the redemption of the property by the Plaintiff,  nothing  was
done by  them.  They  also  did  not  exercise  their  right  of  preemption
available under the Portuguese Law. Conspicuously, none  of  the  defendants
entered the witness  box  despite  the  voluminous  and  clinching  evidence
tendered by  the  Plaintiff,  obviously  to  avoid  inconvenient  questions,
particularly, based on PW-1/F extracted hereinabove. In  that  view  of  the
matter, it is also not necessary to deal with the various other  contentions
advanced by learned Senior Counsel on both sides since they have no  bearing
on the ultimate conclusion.

In our view, no substantial or grave injustice is caused to the  Defendants:
on the contrary, the justice of the case, on facts,  is  in  favour  of  the
Plaintiff,  and  therefore,  no  interference  under  Article  136  of   the
Constitution of India is required. Once, it is found  that  justice  of  the
case on facts does  not  require  interference,  this  Court,  even  at  the
appellate stage, is well within its discretion to stay  its  hands  off,  as
held in Taherakhatoon (D) by Lrs. v. Salambin Mohammad[6].

Thus, viewed from any angle, justice was done to the Plaintiff  as  per  the
decree granted to them by the High Court and no injustice is caused  to  the
Defendants, in particular, Defendant  No. 9, who, with open eyes,  purchased
litigation. As we have decided not to interfere with  the  judgment  of  the
High Court in favour of the  Plaintiff,  we  also  dismiss  the  Plaintiff’s
appeal against the impugned judgment seeking the entire property.
We, however, find it difficult to agree with the reasoning of  the  impugned
judgment on many aspects, and  hence,  while  dismissing  all  the  appeals,
including the appeal of M/s Primella Sanitary Products Private  Limited,  we
leave the questions of law open. The Contempt Petition  (Civil)  No.  89  of
2016 also stands dismissed as we see no contemptuous conduct on part of  the
alleged contemnors.

There shall be no order as to costs.



                                                        ....….…………………………….J.
                                            (KURIAN JOSEPH)


                                                          ….….…………………………….J.
                                                     (ROHINTON FALI NARIMAN)

NEW DELHI;
SEPTEMBER 19, 2016.
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[1]





       (1990) 3 SCC 517
[2]    (1994) 4 SCC 18
[3]    (2000) 10 SCC 636

[4]    (2005) 5 SCC 142

[5]   (2009) 10 SCC 654

[6]    (1999) 2 SCC 635



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