When the agreement of sale was excuted in the capacity of power of attorney holder of his father alone even though in respect of joint property, it never operates as estoppel in the absence of specific agreement of sale and also in the absence of specific pleadings.
Suit filed by the plaintiff for specific performance of an agreement of sale -suit scheduled property inherited by Princess Leelavathi, wife of late K. Basavaraja Urs - The suit scheduled property along with adjoining properties devolved on late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs, defendant No.1, in terms of section 15 of the Hindu Succession Act-On 24.4.1979, late K. Basavaraja Urs, represented by his son, i.e., defendant No.1 as power of attorney, entered into an agreement to sell with the plaintiffs for a consideration-After the demise of Princess Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1. The 1st defendant has not conveyed his interest in the suit property in favour of plaintiffs. Defendants contended that no agreement was entered into with the plaintiffs. The suit is barred by time.-
Trial court held that Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement and, therefore, he cannot be permitted to contend that he is not a party to the suit agreement in his individual capacity. -
The High Court has found that defendant No.1 has executed the agreement not only as power of attorney for his father but also as a son of late K. Basavaraja Urs. -The High Court has also held that the property was held by Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956.-
Apex court held that A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property. There is no whisper about the same in the agreement. doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6049 OF 2007
SIRDAR K.B. RAMACHANDRA RAJ URS. (DEAD)
THROUGH LRS. ..APPELLANT(S)
VERSUS
SARAH C. URS & ORS. ..RESPONDENT(S)
WITH
CIVIL APPEAL NO.6050 OF 2007
J U D G M E N T
ARUN MISHRA, J.
1. The appeals are preferred against the judgment and order dated
13.8.2007 passed by the High Court, affirming the judgment and order
of the trial court decreeing the suit filed by the plaintiff for specific
performance of an agreement of sale.
2. The plaintiffs filed the suit concerning suit scheduled property
inherited by Princess Leelavathi, wife of late K. Basavaraja Urs. She
had adopted the defendant No.1 and died during the year 195859.
The suit scheduled property along with adjoining properties devolved
on late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs,
2
defendant No.1, in terms of section 15 of the Hindu Succession Act,
1956. The Plaintiff Nos.1 and 2 were the close relatives and friend of
the family of late K. Basavaraja Urs and the 2nd plaintiff apart from
being a close relative and friend of Defendant No.1, was also a Legal
Advisor and Advocate of late K. Basavaraja Urs.
3. The property was let out to plaintiff No.2 in the year 1969 by late
K. Basavaraja Urs and defendant No.1. Late K. Basavaraja Urs and
defendant No.1 sold the adjoining property to various persons vide
registered sale deeds. Late K. Basavaraja Urs offered to sell the suit
scheduled property to the plaintiffs. On 24.4.1979, late K. Basavaraja
Urs, represented by his son, i.e., defendant No.1 as power of attorney,
entered into an agreement to sell with the plaintiffs for a consideration
of Rs.1,50,000/ out of which a sum of Rs.1,00,000/ was received on
the same day. The defendant No.1 agreed to obtain a clearance
certificate under section 230A of the Income Tax Act as also under the
provisions of the Urban Land Ceiling Act. The plaintiffs continued to
have the possession of suit property in part performance of the
agreement dated 24.04.1979 and stopped paying rent.
4. The defendant No.1 always ensured the plaintiffs to execute the
registered sale deed in terms of suit agreement after obtaining a
clearance certificate from the Income Tax Department and under the
3
Urban Land Ceiling Act. On 1.6.1993, defendant No.1 received the
balance sale consideration of Rs.50,000/ from 2nd plaintiff and
executed a stamped receipt in favour of the plaintiffs with an
undertaking to execute the deed of conveyance.
5. The defendant No.1, made the correspondence with the Income
Tax Department to obtain the Income Tax clearance. However, the
need to seek permission under the Urban Land Ceiling Authority
vanished as per the decision of this Court concerning section 27 of the
said Act as defendant No.1 was postponing to execute the registered
sale deed on one pretext or the other. A legal notice dated 5.6.1990
was served, and after that, the suit had been filed on 19.9.1990
seeking specific performance.
6. Defendant Nos.1, 2, and 4 in their written statements contended
that the 2nd plaintiff claimed to be a close relative of late K. Basavaraja
Urs. He was his lawyer and selfassumed trustee. He obtained the
signatures of defendant no.1 on blank papers, which has been
misused by the 2nd plaintiff to create the agreement in question dated
24.4.1979. It was assured that agreement was obtained as a collateral
document to secure professional charges, which, according to the
plaintiff, remained unpaid.
7. The defendants denied the receipt of the sale consideration on
4
24.4.1979 and 1.6.1993 and also the subsequent correspondence
between plaintiff No.2 and defendant No.1 and his Tax Consultant.
The 2nd plaintiff was never permitted to put up construction on the
property by the defendant No.1. After the demise of Princess
Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1. The 1st defendant has not conveyed his interest in the
suit property in favour of plaintiffs. Defendants contended that no
agreement was entered into with the plaintiffs. The suit is barred by
time.
8. Defendant No.5, in his written statement, took the plea that the
property being ancestral could not have been sold by defendant No.1 to
the detriment of the 5th defendant. There was no legal necessity to sell
the property.
9. The trial court decreed the suit and recorded a finding that the
agreement has been executed on 24.4.1979. The defendant No.1 has
admitted his signatures on the suit agreement dated 24.4.1979 and
receipt dated 1.6.1983. Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement
and, therefore, he cannot be permitted to contend that he is not a
party to the suit agreement in his individual capacity. They were
required to obtain an income tax clearance certificate and after that to
5
execute the registered sale deed, in which they have failed. Late K.
Basavaraja Urs owned vast landed and house properties at Bangalore
and Mysore. They were statutorily bound to obtain a clearance
certificate from the Income Tax Department, and as they failed to
obtain it, they cannot be permitted to contend that suit is barred by
limitation. The High Court has affirmed the findings of the trial court.
10. The High Court has disbelieved the case set up by defendant
No.1 that he had put his signatures on blank paper. Plaintiff No.2 was
appointed as Judge of the High Court during September 1978;
therefore, on 24.4.1979, there was no fiduciary relationship between
them. Plaintiffs have also produced the original stamped receipt dated
1.6.1983 (Exhibit P19) admitting the receipt of remaining Rs.50,000
by defendants No.1 in which a sum of Rs.42,000 was paid in cash and
Rs.8,000 was paid by cheque. Defendant No.1 had admitted his
signatures on Exh. P19. Defendant No.1 also admitted that he had
encashed the cheque. The plea of the 1st defendant is false and thus
cannot be accepted. The High Court has also referred to the order
passed by the Income Tax Appellate Tribunal wherein the claim of 2nd
plaintiff for exemption of Rs.50,000 under the Income Tax Act, paid to
1
st defendant towards the remaining sale consideration was allowed in
terms of section 54(F) of Income Tax Act.
6
11. The High Court has further found that the defendant has taken
an inconsistent and contrary stand. The defendant was visiting 2nd
plaintiff all along insisting on obtaining Income Tax Clearance
Certificate, which was postponed by the defendant No.1 on one pretext
or the other. The consideration has been paid under the agreement
dated 24.4.1979.
12. The High Court has found that defendant No.1 has executed the
agreement not only as power of attorney for his father but also as a
son of late K. Basavaraja Urs. The stand of defendant No.1 is
inconsistent. Defendant No.1, allowed the plaintiffs to put up the
construction in the suit property. Thus, he was precluded from
contending that he was not a party to the agreement. The High Court
has also held that defendant No.1 has entered into the agreement and
the entire consideration has been received, it is not considered
appropriate to grant the liquidated damage or penalty for the breach of
contract. The High Court has also held that the property was held by
Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death,
the suit property devolved on late K. Basavaraj Urs and defendant No.1
under section 15 of Hindu Succession Act, 1956.
13. It was submitted by the learned counsel appearing on behalf of
the appellants that plaintiff No.2, M.P. Chandrakanta Raj Urs, was
7
elevated as Judge of the High Court. Earlier, he was the Legal Advisor
of the late K. Basavaraja Urs. Thus, he could not have purchased the
property. The agreement was not duly executed, and the suit was
barred by limitation. The findings have been recorded that property
was inherited by K.B. Ram Chandra Raj Urs, i.e., defendant No. 1 from
Princess Leelavathi. The agreement was with late K. Basavaraja Urs
and not with defendant No.1. Defendant No.1 did not execute
agreement of his share. The Courts below erred in decreeing the suit
in toto. The suit could have been decreed to the extent of the shares of
the late K. Basavaraja Urs.
14. Learned senior counsel appearing on behalf of the respondents
has supported the judgment and decree passed by the courts below. It
is further submitted that no case for interference is made out in the
appeals given the concurrent findings of facts recorded by the courts
below. The appeals deserve to be dismissed.
15. We deem it appropriate to place on record that learned counsel
for the parties had taken time to file the compromise, if reached. We
have been informed that no compromise could be arrived at between
the parties. Be that as it may. We proceed to decide the appeals on
merits.
16. The concurrent findings are recorded as to receipt of
8
consideration and execution of the agreement to sell. There is no
doubt about it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was
earlier a counsel and legal advisor to K. Basavaraja Urs, but when the
agreement had been executed, he was not a lawyer and became a
Judge of the High Court. There are concurrent findings recorded
concerning the execution of the agreement, and it has been rightly
found established that signatures were not obtained on blank papers.
There is concurrent finding recorded by the courts below that
consideration has been paid. Thus, no case for interference is made
out in the aforesaid findings.
17. The courts below have found that correspondence was made by
defendants No.1 to obtain Income Tax clearance. The suit has been
held not to be barred by limitation. Given the facts and material
placed on record, no interference is called for with those findings also.
18. Learned senior counsel submitted that agreement to sell dated
24.4.1979 was between “late K. Basavaraja Urs and “Smt. Sarah C.
Urs', wife of M.P. Chandrakantaraj Urs and P. Chandrakantaraj Urs,
son of Late R. Putturaj Urs”. There was no dispute concerning ½ share
of K.B. Ram Chandra Raj Urs, which he had inherited from Princess
Leelavathi. Thus, the suit could not have been decreed in toto; it could
have been decreed only to the extent of the share of late K. Basavaraja
9
Urs in the property. In support of his contention, he has relied upon
the decision of this Court in R.S. Madanappa (deceased) v.
Chandramma & Anr., AIR 1965 SC 1812.
19. The statement of plaintiff No. 2 has been pointed out, indicating
that he was aware that there were equal shares of K. Basavaraja Urs
and K. B. Ramchandra Raj Urs (defendant No.1) in the property.
Thus, plaintiff No.2 cannot plead that they were induced by erroneous
belief while entering into agreement, by the conduct of defendant No.1.
The plea of estoppel is, thus, not attracted. There is no proper
foundation in the pleading regarding the plea of estoppel. The
submission raised by learned counsel on behalf of respondent is that
defendant No.1 acted as power of attorney holder of his father and
received the sale consideration also. As such he is bound by the plea
of estoppel to contend to the contrary.
20. It is necessary to consider the agreement. The agreement is
extracted hereunder:
“THIS AGREEMENT TO SELL is made on 24th day of April 1979
BETWEEN SRI K. BASAVARAJ URS, son of Late Sri Muddaraj
Urs, aged about 84 years, residing at 1-A (old No.5), Palace Road,
Bangalore – 560 001 (hereinafter referred to as the “VENDOR” which
expression shall unless the context otherwise required include the
heirs, assigns, administrators, successors and legal representatives of
the VENDOR) of the one part AND SMT. SARAH C. URS, the wife
of Sri M.P. Chandrakantaraj Urs and SRI P CHANDRAKANTARAJ
URS, son of late Sri R Putturaj Urs, residing at 1B Palace Road,
Bangalore – 560001, (hereinafter called the "PURCHASERS" which
expression shall unless the context otherwise requires to include their
heirs, assigns, administrators, successors and legal representatives of
10
the other part.
WHEREAS the VENDOR is the absolute owner of the property at
1B, Palace Road, Bangalore – 560001, an whereas the VENDOR is
desirous of disposing of the said house together with the plot of land,
fixtures, fittings, etc. of Rs.1,50,000/- (Rupees One Lakh Fifty
Thousand only) and the PURCHASERS are agreeable to buy the same
at the said price.
NOW THEREFORE, THIS DEED/ WITNESSETH AS FOLLOWS:
(1) That the VENDOR shall free from encumbrances the said property
situated at q-B Palace Road, Bangalore – 560 001, and the
PURCHASER shall buy the same at the said prices and on the
conditions hereinafter mentioned;
(2) That the said property consists of a single-storeyed house with the
following boundaries:-
On the EAST: No.1-C
On the WEST: Vacant land of VENDOR
On the NORTH: Storm Drain
On the SOUTH: By Common Road
(3) That the consideration of the house shall be payable as follows:-
A sum of Rs.1,00,000/- (Rupees One Lakh Only) paid on the date of
this agreement and the balance of Rs.5,40,000/- (Rupees Fifty
Thousand only payable on or before 23.4.1984.
(4) The VENDOR has delivered possession of the house, which is the
subject matter of this agreement to the PURCHASERS on this day.
(5) This agreement shall subject to permission, express or implied, being
granted under the Urban Land (Ceiling and Regulation) Act. In the
event such permission is not granted, the advance of Rs.1,00,000/-
(Rupees One Lakh only) paid shall be refunded to the PURCHASERS
by the VENDOR:
(6) That in the event of the sale not materializing through the default of
the VENDOR, the amount of Rs.1,00,000/- (Rupees One Lakh Only)
shall be refunded to the PURCHASERS with interest at 10 percent per
annum from the date hereof to the date of refund;
(7) That in the event of the sale not materializing through the default of
the PURCHASERS, 10 percent of the consideration money shall be
forfeited as earnest money and the balance refunded by the VENDOR
to the PURCHASERS out of the advance of Rs.1,00,000/- (Rupees
One lakh only) received by the former;
(8) VENDOR or his Power of Attorney shall cause all licences etc., to be
sanctioned for any additions or alterations to be made to the premise
before the actual transfer of title in terms of this agreement.
IN WITNESS where of the parties have set their hands the day and the
year first above mentioned.
Sd/-
SELLER
WITNESSES:
1. Sd/-
2. Sd/-
PURCHASERS”
11
A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of
attorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned as K.
Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be
said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property. There is no whisper
about the same in the agreement. The position mentioned above may
indicate that plaintiffs were misled by the Power of Attorney holder
that only late K. Basavaraja Urs was the exclusive owner of the
property. When we consider the statement of M.P Chandrakanta Raj
Urs (Plaintiff No.2), it clearly indicates that he was well aware of the
fact that Princess Leelavathi owned the property and upon her death
the property devolved upon, in equal shares and he was aware of the
other sale deeds executed (Exhs. P 43, P44, P45, P46). It is clear
that plaintiff No.2 was aware as to the extant title of K.B. Ram
Chandra Raj Urs in the property and also the fact that it was a joint
family property. In the plaint, the plaintiffs have not taken the plea of
estoppel, and now the case was set up that property had been sold by
defendant No.1 in his capacity without any such plea in the plaint.
Thus, plaintiff No.2 was well aware of the fact as to the title of K.B.
Ramchandra Raj Urs in the property and that late K. Basavaraja Urs
12
did not exclusively own the property.
21. The plea of estoppel in view the decision of this court in R.S.
Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted,
in which the Court has held that estoppel by conduct could not arise
when a person concerned knew the right position relating to the title in
property in his possession, he could not plead that he was induced to
hold an erroneous belief because of the conduct of real owner of that
property. This court has observed thus:
“6. We will consider the question of estoppel first. The conduct of the
first defendant from which the learned counsel wants us to draw the
inference of estoppel consists of her attitude when she was served
with a notice by the plaintiff, her general attitude respecting Bangalore
properties as expressed in the letter dated 17th January 1941, written
by her to her stepmother and the attestation by her and her husband on
3rd October 1944, of the will executed on 25th January 1941 by
Maddanappa. In the notice dated 26th January 1948, by the plaintiff’s
lawyer to the first defendant it was stated that the plaintiff and the first
defendant were joint owners of the suit properties which were in
possession of their father and requested for the cooperation of the first
defendant in order to effect the division of the properties. A copy of
this notice was sent to Maddanappa, and he sent a reply to it to the
plaintiff's lawyers. The first defendant, however, sent no reply at all.
We find it difficult to construe the conduct of the first defendant in not
replying to the notice and is not cooperating with the plaintiff in
instituting a suit for obtaining possession of the properties as
justifying the inference of estoppel. It does not mean that she
impliedly admitted that she had no interest in the properties. It is true
that in Ex. 15, which is a letter sent by her on 17th January 1941, to
her stepmother she has observed thus:
“I have no desire whatsoever in respect of the properties
which are at Bangalore. Everything belongs to my father. He has
the sole authority to do anything…. We give our consent to
anything done by our father. We will not do anything.”
But even these statements cannot assist the appellants because
admittedly, the father knew the true legal position. That is to
say; the father knew that these properties belonged to
Puttananjamma and that he had no authority to deal with these
properties. No doubt, in his written statement, Maddanappa had
13
set up a case that the properties belonged to him by virtue of the
declaration made by Puttananjamma at the time of her death, but
that case has been negatived by the courts below. The father’s
possession must, therefore, be deemed to have been, to his
knowledge, on behalf of the plaintiff and the first defendant.
There was thus no possibility of an erroneous belief about his
title being created in the mind of Maddanappa because of what
the first defendant had said in her letter to her stepmother.
7. Insofar as the attestation of the will is concerned, the appellants’
position is no better. This “will” purports to make a disposition of the
suit properties along with other properties by Maddanappa in favour
of Defendants 3 to 8. The attestation of the will by the first defendant
and her husband, would no doubt affix them with the knowledge of
what Maddanappa was doing, but it cannot operate as estoppel against
them and in favour of Defendants 3 to 8 or even in favour of
Maddanappa. The will could take effect only upon the death of
Maddanappa and, therefore, no interest in the property had at all
accrued to Defendants 3 to 8, even on the date of the suit. So far as
Maddanappa is concerned, he, as already stated, knew the true
position and, therefore, could not say that an erroneous belief about
his title to the properties was created in his mind by reason of the
conduct of the first defendant and her husband in attesting the
document. Apart from that, there is nothing on the record to show that
by reason of the conduct of the first defendant Maddanappa altered his
position to his disadvantage.
8. Mr. Venkatarangaiengar, however, says that subsequent to the
execution of the will, he had effected further improvements in the
properties and for this purpose, spent his own moneys. According to
him, he would not have done so in the absence of assurance like the
one given by the first defendant and her husband to the effect that they
had no objection to the disposition of the suit properties by him in any
way he chose to make it. The short answer to this is that Maddanappa,
on his own allegations, was not only in possession and enjoyment of
these properties ever since the death of Putananjamma but had made
improvements in the properties even before the execution of the will.
In these circumstances, it is clear that the provisions of Section 115 of
the Indian Evidence Act, which contain the law of estoppel by
representation, do not help him.”
22. Thus, it is clear that there was no possibility of erroneous beliefs
in the mind of the plaintiffs as to title position in the property. No
doubt about it that defendant No.1 has acted as a power of attorney,
but at the same time, did not act in his capacity as the owner of the
property. The ownership of K.B. Ramchandra Raj Urs was known to
14
the plaintiffs. In spite of that the plaintiffs have not set up the case to
bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in
the plaint that K.B Ramchandra Raj Urs owned the property. There is
no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint.
They needed to plead the facts to attract the plea of estoppel. That has
not been done. Thus, the agreement which had been executed was not
concerning share of defendant No.1, but of late K. Basavaraja Urs as
his power of attorney.
23. In view of the agreement and the admission made by the
plaintiffs, we are of the opinion that it would be appropriate to modify
the decree passed by the courts below to the extent of 50 per cent of
the shares of the deceased late K. Basavaraja Urs and to set it aside
with respect to the remaining ½ share of K.B. Ramchandra Raj Urs
(defendant No.1) in the property, since the property devolved under
section 15 of the Hindu Succession Act.
24. Thus, we hold that the plaintiffs to be entitled only to the extent
of ½ share in the suit property. The decree to the remaining extent is
set aside. The plaintiffs would not be entitled to refund of any
consideration as by now the worth of property has increased manifold.
25. We direct the trial court to divide the property in two equal
proportions and it be given to the parties. Let the division be carried
15
out within four months by the Trial Court. The appeals are allowed to
the extent mentioned above. No costs.
.................................J.
[ ARUN MISHRA ]
.................................J.
[ S. ABDUL NAZEER ]
NEW DELHI;
OCTOBER 24, 2019.
Suit filed by the plaintiff for specific performance of an agreement of sale -suit scheduled property inherited by Princess Leelavathi, wife of late K. Basavaraja Urs - The suit scheduled property along with adjoining properties devolved on late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs, defendant No.1, in terms of section 15 of the Hindu Succession Act-On 24.4.1979, late K. Basavaraja Urs, represented by his son, i.e., defendant No.1 as power of attorney, entered into an agreement to sell with the plaintiffs for a consideration-After the demise of Princess Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1. The 1st defendant has not conveyed his interest in the suit property in favour of plaintiffs. Defendants contended that no agreement was entered into with the plaintiffs. The suit is barred by time.-
Trial court held that Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement and, therefore, he cannot be permitted to contend that he is not a party to the suit agreement in his individual capacity. -
The High Court has found that defendant No.1 has executed the agreement not only as power of attorney for his father but also as a son of late K. Basavaraja Urs. -The High Court has also held that the property was held by Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death, the suit property devolved on late K. Basavaraj Urs and defendant No.1 under section 15 of Hindu Succession Act, 1956.-
Apex court held that A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of attorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned as K. Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property. There is no whisper about the same in the agreement. doubt about it that defendant No.1 has acted as a power of attorney, but at the same time, did not act in his capacity as the owner of the property. The ownership of K.B. Ramchandra Raj Urs was known to the plaintiffs. In spite of that the plaintiffs have not set up the case to bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in the plaint that K.B Ramchandra Raj Urs owned the property. There is no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint. They needed to plead the facts to attract the plea of estoppel. That has not been done. Thus, the agreement which had been executed was not concerning share of defendant No.1, but of late K. Basavaraja Urs as his power of attorney.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6049 OF 2007
SIRDAR K.B. RAMACHANDRA RAJ URS. (DEAD)
THROUGH LRS. ..APPELLANT(S)
VERSUS
SARAH C. URS & ORS. ..RESPONDENT(S)
WITH
CIVIL APPEAL NO.6050 OF 2007
J U D G M E N T
ARUN MISHRA, J.
1. The appeals are preferred against the judgment and order dated
13.8.2007 passed by the High Court, affirming the judgment and order
of the trial court decreeing the suit filed by the plaintiff for specific
performance of an agreement of sale.
2. The plaintiffs filed the suit concerning suit scheduled property
inherited by Princess Leelavathi, wife of late K. Basavaraja Urs. She
had adopted the defendant No.1 and died during the year 195859.
The suit scheduled property along with adjoining properties devolved
on late K. Basavaraja Urs, father of K.B. Ramachandra Raj Urs,
2
defendant No.1, in terms of section 15 of the Hindu Succession Act,
1956. The Plaintiff Nos.1 and 2 were the close relatives and friend of
the family of late K. Basavaraja Urs and the 2nd plaintiff apart from
being a close relative and friend of Defendant No.1, was also a Legal
Advisor and Advocate of late K. Basavaraja Urs.
3. The property was let out to plaintiff No.2 in the year 1969 by late
K. Basavaraja Urs and defendant No.1. Late K. Basavaraja Urs and
defendant No.1 sold the adjoining property to various persons vide
registered sale deeds. Late K. Basavaraja Urs offered to sell the suit
scheduled property to the plaintiffs. On 24.4.1979, late K. Basavaraja
Urs, represented by his son, i.e., defendant No.1 as power of attorney,
entered into an agreement to sell with the plaintiffs for a consideration
of Rs.1,50,000/ out of which a sum of Rs.1,00,000/ was received on
the same day. The defendant No.1 agreed to obtain a clearance
certificate under section 230A of the Income Tax Act as also under the
provisions of the Urban Land Ceiling Act. The plaintiffs continued to
have the possession of suit property in part performance of the
agreement dated 24.04.1979 and stopped paying rent.
4. The defendant No.1 always ensured the plaintiffs to execute the
registered sale deed in terms of suit agreement after obtaining a
clearance certificate from the Income Tax Department and under the
3
Urban Land Ceiling Act. On 1.6.1993, defendant No.1 received the
balance sale consideration of Rs.50,000/ from 2nd plaintiff and
executed a stamped receipt in favour of the plaintiffs with an
undertaking to execute the deed of conveyance.
5. The defendant No.1, made the correspondence with the Income
Tax Department to obtain the Income Tax clearance. However, the
need to seek permission under the Urban Land Ceiling Authority
vanished as per the decision of this Court concerning section 27 of the
said Act as defendant No.1 was postponing to execute the registered
sale deed on one pretext or the other. A legal notice dated 5.6.1990
was served, and after that, the suit had been filed on 19.9.1990
seeking specific performance.
6. Defendant Nos.1, 2, and 4 in their written statements contended
that the 2nd plaintiff claimed to be a close relative of late K. Basavaraja
Urs. He was his lawyer and selfassumed trustee. He obtained the
signatures of defendant no.1 on blank papers, which has been
misused by the 2nd plaintiff to create the agreement in question dated
24.4.1979. It was assured that agreement was obtained as a collateral
document to secure professional charges, which, according to the
plaintiff, remained unpaid.
7. The defendants denied the receipt of the sale consideration on
4
24.4.1979 and 1.6.1993 and also the subsequent correspondence
between plaintiff No.2 and defendant No.1 and his Tax Consultant.
The 2nd plaintiff was never permitted to put up construction on the
property by the defendant No.1. After the demise of Princess
Leelavathi, the suit property devolved on late K. Basavaraja Urs and
defendant No.1. The 1st defendant has not conveyed his interest in the
suit property in favour of plaintiffs. Defendants contended that no
agreement was entered into with the plaintiffs. The suit is barred by
time.
8. Defendant No.5, in his written statement, took the plea that the
property being ancestral could not have been sold by defendant No.1 to
the detriment of the 5th defendant. There was no legal necessity to sell
the property.
9. The trial court decreed the suit and recorded a finding that the
agreement has been executed on 24.4.1979. The defendant No.1 has
admitted his signatures on the suit agreement dated 24.4.1979 and
receipt dated 1.6.1983. Defendant No.1 for himself and as a power of
attorney holder of late K. Basavaraja Urs, executed the suit agreement
and, therefore, he cannot be permitted to contend that he is not a
party to the suit agreement in his individual capacity. They were
required to obtain an income tax clearance certificate and after that to
5
execute the registered sale deed, in which they have failed. Late K.
Basavaraja Urs owned vast landed and house properties at Bangalore
and Mysore. They were statutorily bound to obtain a clearance
certificate from the Income Tax Department, and as they failed to
obtain it, they cannot be permitted to contend that suit is barred by
limitation. The High Court has affirmed the findings of the trial court.
10. The High Court has disbelieved the case set up by defendant
No.1 that he had put his signatures on blank paper. Plaintiff No.2 was
appointed as Judge of the High Court during September 1978;
therefore, on 24.4.1979, there was no fiduciary relationship between
them. Plaintiffs have also produced the original stamped receipt dated
1.6.1983 (Exhibit P19) admitting the receipt of remaining Rs.50,000
by defendants No.1 in which a sum of Rs.42,000 was paid in cash and
Rs.8,000 was paid by cheque. Defendant No.1 had admitted his
signatures on Exh. P19. Defendant No.1 also admitted that he had
encashed the cheque. The plea of the 1st defendant is false and thus
cannot be accepted. The High Court has also referred to the order
passed by the Income Tax Appellate Tribunal wherein the claim of 2nd
plaintiff for exemption of Rs.50,000 under the Income Tax Act, paid to
1
st defendant towards the remaining sale consideration was allowed in
terms of section 54(F) of Income Tax Act.
6
11. The High Court has further found that the defendant has taken
an inconsistent and contrary stand. The defendant was visiting 2nd
plaintiff all along insisting on obtaining Income Tax Clearance
Certificate, which was postponed by the defendant No.1 on one pretext
or the other. The consideration has been paid under the agreement
dated 24.4.1979.
12. The High Court has found that defendant No.1 has executed the
agreement not only as power of attorney for his father but also as a
son of late K. Basavaraja Urs. The stand of defendant No.1 is
inconsistent. Defendant No.1, allowed the plaintiffs to put up the
construction in the suit property. Thus, he was precluded from
contending that he was not a party to the agreement. The High Court
has also held that defendant No.1 has entered into the agreement and
the entire consideration has been received, it is not considered
appropriate to grant the liquidated damage or penalty for the breach of
contract. The High Court has also held that the property was held by
Princess Leelavathi, wife of late K. Basavaraja Urs, and after her death,
the suit property devolved on late K. Basavaraj Urs and defendant No.1
under section 15 of Hindu Succession Act, 1956.
13. It was submitted by the learned counsel appearing on behalf of
the appellants that plaintiff No.2, M.P. Chandrakanta Raj Urs, was
7
elevated as Judge of the High Court. Earlier, he was the Legal Advisor
of the late K. Basavaraja Urs. Thus, he could not have purchased the
property. The agreement was not duly executed, and the suit was
barred by limitation. The findings have been recorded that property
was inherited by K.B. Ram Chandra Raj Urs, i.e., defendant No. 1 from
Princess Leelavathi. The agreement was with late K. Basavaraja Urs
and not with defendant No.1. Defendant No.1 did not execute
agreement of his share. The Courts below erred in decreeing the suit
in toto. The suit could have been decreed to the extent of the shares of
the late K. Basavaraja Urs.
14. Learned senior counsel appearing on behalf of the respondents
has supported the judgment and decree passed by the courts below. It
is further submitted that no case for interference is made out in the
appeals given the concurrent findings of facts recorded by the courts
below. The appeals deserve to be dismissed.
15. We deem it appropriate to place on record that learned counsel
for the parties had taken time to file the compromise, if reached. We
have been informed that no compromise could be arrived at between
the parties. Be that as it may. We proceed to decide the appeals on
merits.
16. The concurrent findings are recorded as to receipt of
8
consideration and execution of the agreement to sell. There is no
doubt about it that M.P. Chandrakanta Raj Urs (Plaintiff No.2) was
earlier a counsel and legal advisor to K. Basavaraja Urs, but when the
agreement had been executed, he was not a lawyer and became a
Judge of the High Court. There are concurrent findings recorded
concerning the execution of the agreement, and it has been rightly
found established that signatures were not obtained on blank papers.
There is concurrent finding recorded by the courts below that
consideration has been paid. Thus, no case for interference is made
out in the aforesaid findings.
17. The courts below have found that correspondence was made by
defendants No.1 to obtain Income Tax clearance. The suit has been
held not to be barred by limitation. Given the facts and material
placed on record, no interference is called for with those findings also.
18. Learned senior counsel submitted that agreement to sell dated
24.4.1979 was between “late K. Basavaraja Urs and “Smt. Sarah C.
Urs', wife of M.P. Chandrakantaraj Urs and P. Chandrakantaraj Urs,
son of Late R. Putturaj Urs”. There was no dispute concerning ½ share
of K.B. Ram Chandra Raj Urs, which he had inherited from Princess
Leelavathi. Thus, the suit could not have been decreed in toto; it could
have been decreed only to the extent of the share of late K. Basavaraja
9
Urs in the property. In support of his contention, he has relied upon
the decision of this Court in R.S. Madanappa (deceased) v.
Chandramma & Anr., AIR 1965 SC 1812.
19. The statement of plaintiff No. 2 has been pointed out, indicating
that he was aware that there were equal shares of K. Basavaraja Urs
and K. B. Ramchandra Raj Urs (defendant No.1) in the property.
Thus, plaintiff No.2 cannot plead that they were induced by erroneous
belief while entering into agreement, by the conduct of defendant No.1.
The plea of estoppel is, thus, not attracted. There is no proper
foundation in the pleading regarding the plea of estoppel. The
submission raised by learned counsel on behalf of respondent is that
defendant No.1 acted as power of attorney holder of his father and
received the sale consideration also. As such he is bound by the plea
of estoppel to contend to the contrary.
20. It is necessary to consider the agreement. The agreement is
extracted hereunder:
“THIS AGREEMENT TO SELL is made on 24th day of April 1979
BETWEEN SRI K. BASAVARAJ URS, son of Late Sri Muddaraj
Urs, aged about 84 years, residing at 1-A (old No.5), Palace Road,
Bangalore – 560 001 (hereinafter referred to as the “VENDOR” which
expression shall unless the context otherwise required include the
heirs, assigns, administrators, successors and legal representatives of
the VENDOR) of the one part AND SMT. SARAH C. URS, the wife
of Sri M.P. Chandrakantaraj Urs and SRI P CHANDRAKANTARAJ
URS, son of late Sri R Putturaj Urs, residing at 1B Palace Road,
Bangalore – 560001, (hereinafter called the "PURCHASERS" which
expression shall unless the context otherwise requires to include their
heirs, assigns, administrators, successors and legal representatives of
10
the other part.
WHEREAS the VENDOR is the absolute owner of the property at
1B, Palace Road, Bangalore – 560001, an whereas the VENDOR is
desirous of disposing of the said house together with the plot of land,
fixtures, fittings, etc. of Rs.1,50,000/- (Rupees One Lakh Fifty
Thousand only) and the PURCHASERS are agreeable to buy the same
at the said price.
NOW THEREFORE, THIS DEED/ WITNESSETH AS FOLLOWS:
(1) That the VENDOR shall free from encumbrances the said property
situated at q-B Palace Road, Bangalore – 560 001, and the
PURCHASER shall buy the same at the said prices and on the
conditions hereinafter mentioned;
(2) That the said property consists of a single-storeyed house with the
following boundaries:-
On the EAST: No.1-C
On the WEST: Vacant land of VENDOR
On the NORTH: Storm Drain
On the SOUTH: By Common Road
(3) That the consideration of the house shall be payable as follows:-
A sum of Rs.1,00,000/- (Rupees One Lakh Only) paid on the date of
this agreement and the balance of Rs.5,40,000/- (Rupees Fifty
Thousand only payable on or before 23.4.1984.
(4) The VENDOR has delivered possession of the house, which is the
subject matter of this agreement to the PURCHASERS on this day.
(5) This agreement shall subject to permission, express or implied, being
granted under the Urban Land (Ceiling and Regulation) Act. In the
event such permission is not granted, the advance of Rs.1,00,000/-
(Rupees One Lakh only) paid shall be refunded to the PURCHASERS
by the VENDOR:
(6) That in the event of the sale not materializing through the default of
the VENDOR, the amount of Rs.1,00,000/- (Rupees One Lakh Only)
shall be refunded to the PURCHASERS with interest at 10 percent per
annum from the date hereof to the date of refund;
(7) That in the event of the sale not materializing through the default of
the PURCHASERS, 10 percent of the consideration money shall be
forfeited as earnest money and the balance refunded by the VENDOR
to the PURCHASERS out of the advance of Rs.1,00,000/- (Rupees
One lakh only) received by the former;
(8) VENDOR or his Power of Attorney shall cause all licences etc., to be
sanctioned for any additions or alterations to be made to the premise
before the actual transfer of title in terms of this agreement.
IN WITNESS where of the parties have set their hands the day and the
year first above mentioned.
Sd/-
SELLER
WITNESSES:
1. Sd/-
2. Sd/-
PURCHASERS”
11
A bare reading of the agreement described above makes it clear
that agreement is between late K. Basavaraja Urs through power of
attorney, K.B. Ramchandra Raj Urs. The “Vendors” is mentioned as K.
Basavaraja Urs and not K.B. Ramchandra Raj Urs. Thus, it cannot be
said that K.B. Ramchandra Raj Urs had executed the agreement on his
behalf, concerning his share in the property. There is no whisper
about the same in the agreement. The position mentioned above may
indicate that plaintiffs were misled by the Power of Attorney holder
that only late K. Basavaraja Urs was the exclusive owner of the
property. When we consider the statement of M.P Chandrakanta Raj
Urs (Plaintiff No.2), it clearly indicates that he was well aware of the
fact that Princess Leelavathi owned the property and upon her death
the property devolved upon, in equal shares and he was aware of the
other sale deeds executed (Exhs. P 43, P44, P45, P46). It is clear
that plaintiff No.2 was aware as to the extant title of K.B. Ram
Chandra Raj Urs in the property and also the fact that it was a joint
family property. In the plaint, the plaintiffs have not taken the plea of
estoppel, and now the case was set up that property had been sold by
defendant No.1 in his capacity without any such plea in the plaint.
Thus, plaintiff No.2 was well aware of the fact as to the title of K.B.
Ramchandra Raj Urs in the property and that late K. Basavaraja Urs
12
did not exclusively own the property.
21. The plea of estoppel in view the decision of this court in R.S.
Madanappa (deceased) v. Chandramma & Anr., (supra) is not attracted,
in which the Court has held that estoppel by conduct could not arise
when a person concerned knew the right position relating to the title in
property in his possession, he could not plead that he was induced to
hold an erroneous belief because of the conduct of real owner of that
property. This court has observed thus:
“6. We will consider the question of estoppel first. The conduct of the
first defendant from which the learned counsel wants us to draw the
inference of estoppel consists of her attitude when she was served
with a notice by the plaintiff, her general attitude respecting Bangalore
properties as expressed in the letter dated 17th January 1941, written
by her to her stepmother and the attestation by her and her husband on
3rd October 1944, of the will executed on 25th January 1941 by
Maddanappa. In the notice dated 26th January 1948, by the plaintiff’s
lawyer to the first defendant it was stated that the plaintiff and the first
defendant were joint owners of the suit properties which were in
possession of their father and requested for the cooperation of the first
defendant in order to effect the division of the properties. A copy of
this notice was sent to Maddanappa, and he sent a reply to it to the
plaintiff's lawyers. The first defendant, however, sent no reply at all.
We find it difficult to construe the conduct of the first defendant in not
replying to the notice and is not cooperating with the plaintiff in
instituting a suit for obtaining possession of the properties as
justifying the inference of estoppel. It does not mean that she
impliedly admitted that she had no interest in the properties. It is true
that in Ex. 15, which is a letter sent by her on 17th January 1941, to
her stepmother she has observed thus:
“I have no desire whatsoever in respect of the properties
which are at Bangalore. Everything belongs to my father. He has
the sole authority to do anything…. We give our consent to
anything done by our father. We will not do anything.”
But even these statements cannot assist the appellants because
admittedly, the father knew the true legal position. That is to
say; the father knew that these properties belonged to
Puttananjamma and that he had no authority to deal with these
properties. No doubt, in his written statement, Maddanappa had
13
set up a case that the properties belonged to him by virtue of the
declaration made by Puttananjamma at the time of her death, but
that case has been negatived by the courts below. The father’s
possession must, therefore, be deemed to have been, to his
knowledge, on behalf of the plaintiff and the first defendant.
There was thus no possibility of an erroneous belief about his
title being created in the mind of Maddanappa because of what
the first defendant had said in her letter to her stepmother.
7. Insofar as the attestation of the will is concerned, the appellants’
position is no better. This “will” purports to make a disposition of the
suit properties along with other properties by Maddanappa in favour
of Defendants 3 to 8. The attestation of the will by the first defendant
and her husband, would no doubt affix them with the knowledge of
what Maddanappa was doing, but it cannot operate as estoppel against
them and in favour of Defendants 3 to 8 or even in favour of
Maddanappa. The will could take effect only upon the death of
Maddanappa and, therefore, no interest in the property had at all
accrued to Defendants 3 to 8, even on the date of the suit. So far as
Maddanappa is concerned, he, as already stated, knew the true
position and, therefore, could not say that an erroneous belief about
his title to the properties was created in his mind by reason of the
conduct of the first defendant and her husband in attesting the
document. Apart from that, there is nothing on the record to show that
by reason of the conduct of the first defendant Maddanappa altered his
position to his disadvantage.
8. Mr. Venkatarangaiengar, however, says that subsequent to the
execution of the will, he had effected further improvements in the
properties and for this purpose, spent his own moneys. According to
him, he would not have done so in the absence of assurance like the
one given by the first defendant and her husband to the effect that they
had no objection to the disposition of the suit properties by him in any
way he chose to make it. The short answer to this is that Maddanappa,
on his own allegations, was not only in possession and enjoyment of
these properties ever since the death of Putananjamma but had made
improvements in the properties even before the execution of the will.
In these circumstances, it is clear that the provisions of Section 115 of
the Indian Evidence Act, which contain the law of estoppel by
representation, do not help him.”
22. Thus, it is clear that there was no possibility of erroneous beliefs
in the mind of the plaintiffs as to title position in the property. No
doubt about it that defendant No.1 has acted as a power of attorney,
but at the same time, did not act in his capacity as the owner of the
property. The ownership of K.B. Ramchandra Raj Urs was known to
14
the plaintiffs. In spite of that the plaintiffs have not set up the case to
bind the share of K.B. Ramchandra Raj Urs. They have not pleaded in
the plaint that K.B Ramchandra Raj Urs owned the property. There is
no whisper as to the title of K.B. Ramchandra Raj Urs in the plaint.
They needed to plead the facts to attract the plea of estoppel. That has
not been done. Thus, the agreement which had been executed was not
concerning share of defendant No.1, but of late K. Basavaraja Urs as
his power of attorney.
23. In view of the agreement and the admission made by the
plaintiffs, we are of the opinion that it would be appropriate to modify
the decree passed by the courts below to the extent of 50 per cent of
the shares of the deceased late K. Basavaraja Urs and to set it aside
with respect to the remaining ½ share of K.B. Ramchandra Raj Urs
(defendant No.1) in the property, since the property devolved under
section 15 of the Hindu Succession Act.
24. Thus, we hold that the plaintiffs to be entitled only to the extent
of ½ share in the suit property. The decree to the remaining extent is
set aside. The plaintiffs would not be entitled to refund of any
consideration as by now the worth of property has increased manifold.
25. We direct the trial court to divide the property in two equal
proportions and it be given to the parties. Let the division be carried
15
out within four months by the Trial Court. The appeals are allowed to
the extent mentioned above. No costs.
.................................J.
[ ARUN MISHRA ]
.................................J.
[ S. ABDUL NAZEER ]
NEW DELHI;
OCTOBER 24, 2019.
