specific performance - partition - opportunity to the non- excutant agreement of sale , to purchase the entire property from the holder of agreement of sale.

As   a   matter   of   fact,   agreement   of   sale   dated   02.05.1988 

does   not   refer   to   Defendant   No.   3   at   all   or   his   share   in   the 

property.  However, in the plaint, the plaintiff clearly admitted 

the   share   of   Defendant   No.   3   who   was   a   minor   and   the   fact 

that no guardian was appointed for the minor and Defendant 

No. 2 was not his natural guardian.  Without Defendant No. 3 

joining   the   other   co-sharers,   no   agreement   of   sale   could   be 

entered with the plaintiff for the entire property including the 

minor's   share.     Consequently,   the   agreement  of   sale   covering 

the entire property was void and ineffective.   

9)     It  is  settled   law  that  Section   20   of  the   Specific  Relief   Act, 

1963   confers   discretionary   powers.   [vide:  M.   Meenakshi   &  

Ors.  vs.  Metadin   Agarwal  (2006)   7   SCC   470,  Nirmala  

Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC 

                                                                                   

481,      Parakunnan   Veetill   Joseph's   Son   Mathrew  vs.                                           

Nedumbara Karuvila's Son & Ors.   (1987) Supp. SCC 340]. 

It   is   also   well   settled   that   the   value   of   property   escalates   in 

urban   areas   very   fast   and   it   would   not   be   equitable   to   grant 

specific performance after a lapse of long period of time.  

10)     Apart   from   all   these   material   aspects   before   the   High 

Court,   both   parties   including   the   plaintiff/present   appellant 

agreed   for   a   reasonable   market   valuation.     This   factual 

position is clear from paragraph 7 of the High Court judgment 

which reads as under:-

        "7.     The   counsel   for   appellants   and   respondents   submitted 

        that the market value of property is Rs. 300/- per sq. ft. The 

        total   area   of   property   is   4,655   sq.   ft.   (48'   x   90').     The   total 

        market   value   of   property   would   be   Rs.   13,96,500/-.     The 

        value of 9/11th  share would be Rs. 11,42,590/-.   Defendant 

        No. 3 proposes to purchase the 9/11th share by paying value 

        to   the   plaintiff.     The   counsel   for   the   plaintiffs   with   the 

        instructions from the plaintiff agreed to the said proposal on 

        the condition that the Defendant  No. 3 should pay the said 

        amount   within   three   months.     In   the   event   of   default,   the 

        plaintiff   would   be   entitled   to   the   relief   of   specific 

        performance.     The   Defendant   Nos.   1,   2   and   4   to   7   shall 

        execute sale deed of their share to the extent of 9/11 area in 

        the   suit   property   by   making   convenient   division   of   the 

        property.  Accordingly, the appeal is disposed of."    

11)  The statement made by the counsel before the High Court, 

as   recorded   in   the   impugned   judgment   and   order,   cannot   be 

                                                                                                       7

challenged before this Court.[vide:  State of Maharashtra  vs. 

Ramdas   Shrinivas   Nayak   &   Anr.  (1982)   2   SCC   463, 

Shankar   K.   Mandal   &   Ors.  vs.  State   of   Bihar   &   Ors. 

(2003) 9 SCC 519, Roop Kumar vs. Mohan Thedani (2003) 6 

SCC   595,  Guruvayoor   Devaswom   Managing   Committee   &  

Anr. vs. C.K. Rajan & Ors. (2003) 7 SCC 546]

12)     It   is   also   clear   that   the   High   Court   has   recorded   in   the 

impugned judgment dated 03.03.2009 that the counsel agreed 

with   instructions  from   the   plaintiff   and  reiterated  this  fact  in 

its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in 

the   above-mentioned   RFA   while   rejecting   the   plea   of   the 

counsel   for   the   appellant   herein   that  he  did  not  give   consent 

that   he   had   no   instructions   from   his   clients     A   concession 

made   by   a   counsel   on   a   question   of   fact   is   binding   on   the 

client, but if it is on a question of law, it is not binding. [vide: 

Nedunuri Kameswaramma  vs  Sampati Subba Rao & Anr. 

(1963)   2   SCR   208,   225,  B.S.   Bajwa   &   Anr.   vs.   State   of  

Punjab & Ors. (1998) 2 SCC 523, 525-526]

                                                                                  

13)     As   stated   earlier   and   the   reading   of   the   impugned 

judgment and order of the High Court, more particularly, para 

7,   which   is   concluding   paragraph,   clearly   show   that   it   is   a 

consent   order.     As   per   Section   96   (3)   of   the   Civil   Procedure 

Code,   no   appeal   lies   from   a   decree   passed   by   the   court   with 

the consent of the parties.  

14)   For all these reasons, more particularly, the statement of 

fact as noted in para 7 of the impugned judgment and order of 

the High Court, under Article 136, generally this Court will not 

interfere   with   the   order   of   the   High   Court   which   has   done 

substantial justice.

15)     Since   this   Court   has   stayed   the   impugned   order   of   the 

High Court while ordering of notice on 08.07.2010, Defendant 

No. 3 is granted 3 months' time from today to pay the amount 

as noted in para 7 of the impugned judgment and in the event 

of   default,   the   directions   of  the   High   Court   in   the   same   para 

are to be applied and implemented.  Defendant Nos. 1, 2, 4 to 

7 are directed to return the sum of Rs.1,53,000/- which they 

have   received   towards   sale   consideration   with   interest   at   the 

                                                                                

rate of 9 per cent from the date of payment within a period of 

eight weeks from today to the plaintiff.  

                                                           REPORTABLE

      

                   IN THE SUPREME COURT OF INDIA

                     CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NOs. 4279-4280          OF 2011

          (Arising out of SLP (Civil) Nos. 16595-16596 of 2010

Vimaleshwar Nagappa Shet                                   .... Appellant(s)

                 Versus

Noor Ahmed Sheriff & Ors.                                    .... Respondent(s)

                               J U D G M E N T 

P. Sathasivam, J.

1)         Leave granted.

2)         These   appeals   are   directed   against   the   final   judgment 

and   orders   dated   03.03.2009   and   28.08.2009   of   the   Division 

Bench of the High Court of Karnataka at Bangalore in R.F.A. 

No. 52 of 2000 and Misc. Civil No. 13474 of 2009 in R.F.A. No. 

52   of   2000   respectively   whereby   the   High   Court   disposed   of 

the appeal and dismissed the application.

                                                                                1

.

3)     Brief facts:

(a)    The  property   in  question   originally   belonged   to  one   C.S. 

Abdul   Momin   Sheriff   and   he   died   leaving   behind   his   wife 

Hajiba   Tabsasum   and   Defendant   Nos.   1,   2   and   4   (sons), 

Defendant Nos.   5 to 7 (daughters) and Defendant No. 3, who 

is the son of Late Ismail Sheriff, son of Abdul Momin Shariff. 

After   his   demise,   each  of   the   surviving   sons   succeeded   to   an 

extent of 2/11th share and each of the daughters succeeded to 

1/11th share in the property.   As the division in the scheduled 

property   was   impractical,   Defendant   Nos.   1,   2   and   4   to   7 

desired   to   sell   the   schedule   property   and   to   distribute   sale 

proceeds   between   them.   On   02.05.1988,   they   agreed   to   sell 

the   property   to   one   Vimaleshwar   Nagappa   Shet-plaintiff 

(appellant   herein)   for   a   consideration   of   Rs.3,10,000/-, 

executed   agreement   of   sale   and   received   advance 

consideration   of   Rs.10,000/-.     Subsequently,   on   06.05.1988, 

the wife of C.S Abdul Momin Sheriff died.  

(b)    Till   15.06.1989,   the   plaintiff   paid   a   sum   of 

Rs.1,53,000/-, in all, on various dates.  As the defendants did 

not execute the sale deed, the plaintiff filed a suit for specific 

                                                                              2

.

performance being O.S. No. 91 of 1991 in the Court of the Civil 

Judge at Chikmangalur.   By order dated 01.10.1999, the trial 

Court   decreed   the   suit   in   favour   of   the   plaintiff   and   directed 

the defendants to execute the sale deed in terms of agreement 

of sale dated 02.05.1988.  Aggrieved by the said judgment and 

decree   of   the   trial   Court,   Defendant   Nos.   2,   3   and   7   filed 

appeal   being   R.F.A.   No.   52   of   2000   before   the   High   Court   of 

Karnataka at Bangalore.  

(c)    The High Court taking into account the submission of the 

counsel  for  the  appellants  and  respondents,  fixed  the  market 

value   of   property   at   Rs.300/-   per   sq.   ft.     The   total   area   of 

property is 4,655 sq. ft. (48' x 90'), therefore, the total market 

value of property would be Rs.13,96,500/-.     The High Court, 

by   its   judgment   dated   03.03.2009,   while   holding   that   as 

Defendant   No.3   was   not   a   party   to   the   agreement   and   he 

proposes to purchase the 9/11th  share by paying value to the 

plaintiff   and   the   value   of   9/11th  share   would   be   Rs. 

11,42,590/-   and   the   counsel   for   the   plaintiff   on   the 

instruction   from   the   plaintiff   agreed   to   the   said   proposal   on 

the condition that Defendant No.3 would pay the said amount 

                                                                                 3

.

within three months, in default, the plaintiff would be entitled 

to   the   relief   of   specific   performance   disposed   of   the   appeal 

directing   defendant   Nos.   1,2   and   4   to   7   to   execute   the   sale 

deed   of   their   share   to   the   extent   of   9/11   area   in   the   suit 

property by making convenient division of the property.  

(d)    Thereafter,   an   application   being  Misc.   Civil   No  13474   of 

2009   in   R.F.A.   No.   52   of   2000   was   filed   for   deleting   some 

words   from   the   judgment   and   the   same   was   dismissed. 

Challenging the judgment of the High Court in appeal and the 

order made in the application, the appellant-plaintiff has filed 

these   appeals   by   way   of   special   leave   petitions   before   this 

Court.

4)  Heard Mr. S.N. Bhat, learned counsel for the appellant and 

Mr. P.P. Rao, learned senior counsel for the respondents.

5)   It is not in dispute that the property in question belonged 

to Abdul Momin Sheriff.  After his death, each of the surviving 

sons   succeeded   to   an   extent   of   2/11th  share   and   each   of   the 

daughters succeeded to 1/11th share.  It is also not in dispute 

that   the   agreement   of   sale   was   executed   only   by   Defendant 

Nos. 1, 2 and 4 to 7.   The total share of Defendant Nos. 1, 2 

                                                                                4

.

and 4 to 7 is 9/11 and the share of the Defendant No. 3 who 

did not join the execution of agreement of sale would be 2/11. 

Inasmuch   as   the   Defendant   No.   3   was   not   a   party   to   the 

agreement,   he   is   not   bound   by   the   agreement   executed   by 

other defendants to the extent of his share.

6)     From   the   evidence   and   the   materials,   it   is   clear   that   the 

suit property is dwelling house.  In that event, Section 4 of the 

Partition Act, 1893 is relevant which reads as under:-

       "4. Partition suit by transferee of share in dwelling-house.--

       (1)   Where   a   share   of   a   dwelling-house   belonging   to   an 

       undivided family has been transferred to a person who is not 

       a   member   of   such   family   and   such   transferee   sues   for 

       partition, the court shall, if any member of the family being a 

       shareholder   shall   undertake   to   buy   the   share   of   such 

       transferee, make a valuation of such share in such manner 

       as   it   thinks   fit   and   direct   the   sale   of   such   share   to   such 

       shareholder,   and   may   give   all   necessary   and   proper 

       directions in that behalf.

       (2)     If  in  any   case   described   in  sub-section   (1)  two   or   more 

       members   of   the   family   being   such   shareholders   severally 

       undertake   to   buy   such   share,   the   court   shall   follow   the 

       procedure prescribed by sub-section (2) of the last foregoing 

       section."   

In   view   of   the   above   provision,   Defendant   No.   3   has   right   to 

purchase to exclude the outsider who holds an equitable right 

of purchase of the shares of other defendants.  

                                                                                              5

.

7)     It   is   pertinent   to   point   out   that   plaintiff   was   aware   that 

Defendant No. 3 who was a minor had a share in the property 

and   the   application   made   by   the   other   defendants   before   the 

Civil Court for appointment of Defendant No. 2 as guardian of 

the said minor was not pursued and in fact it was dismissed, 

consequently, his share remained unsold to the plaintiff.

8)     As   a   matter   of   fact,   agreement   of   sale   dated   02.05.1988 

does   not   refer   to   Defendant   No.   3   at   all   or   his   share   in   the 

property.  However, in the plaint, the plaintiff clearly admitted 

the   share   of   Defendant   No.   3   who   was   a   minor   and   the   fact 

that no guardian was appointed for the minor and Defendant 

No. 2 was not his natural guardian.  Without Defendant No. 3 

joining   the   other   co-sharers,   no   agreement   of   sale   could   be 

entered with the plaintiff for the entire property including the 

minor's   share.     Consequently,   the   agreement  of   sale   covering 

the entire property was void and ineffective.   

9)     It  is  settled   law  that  Section   20   of  the   Specific  Relief   Act, 

1963   confers   discretionary   powers.   [vide:  M.   Meenakshi   &  

Ors.  vs.  Metadin   Agarwal  (2006)   7   SCC   470,  Nirmala  

Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC 

                                                                                    6

.

481,      Parakunnan   Veetill   Joseph's   Son   Mathrew                                            vs. 

Nedumbara Karuvila's Son & Ors.   (1987) Supp. SCC 340]. 

It   is   also   well   settled   that   the   value   of   property   escalates   in 

urban   areas   very   fast   and   it   would   not   be   equitable   to   grant 

specific performance after a lapse of long period of time.  

10)     Apart   from   all   these   material   aspects   before   the   High 

Court,   both   parties   including   the   plaintiff/present   appellant 

agreed   for   a   reasonable   market   valuation.     This   factual 

position is clear from paragraph 7 of the High Court judgment 

which reads as under:-

        "7.     The   counsel   for   appellants   and   respondents   submitted 

        that the market value of property is Rs. 300/- per sq. ft. The 

        total   area   of   property   is   4,655   sq.   ft.   (48'   x   90').     The   total 

        market   value   of   property   would   be   Rs.   13,96,500/-.     The 

        value of 9/11th  share would be Rs. 11,42,590/-.   Defendant 

        No. 3 proposes to purchase the 9/11th share by paying value 

        to   the   plaintiff.     The   counsel   for   the   plaintiffs   with   the 

        instructions from the plaintiff agreed to the said proposal on 

        the condition that the Defendant  No. 3 should pay the said 

        amount   within   three   months.     In   the   event   of   default,   the 

        plaintiff   would   be   entitled   to   the   relief   of   specific 

        performance.     The   Defendant   Nos.   1,   2   and   4   to   7   shall 

        execute sale deed of their share to the extent of 9/11 area in 

        the   suit   property   by   making   convenient   division   of   the 

        property.  Accordingly, the appeal is disposed of."    

11)  The statement made by the counsel before the High Court, 

as   recorded   in   the   impugned   judgment   and   order,   cannot   be 

                                                                                                       7

.

challenged before this Court.[vide:  State of Maharashtra  vs. 

Ramdas   Shrinivas   Nayak   &   Anr.  (1982)   2   SCC   463, 

Shankar   K.   Mandal   &   Ors.  vs.  State   of   Bihar   &   Ors. 

(2003) 9 SCC 519, Roop Kumar vs. Mohan Thedani (2003) 6 

SCC   595,  Guruvayoor   Devaswom   Managing   Committee   &  

Anr. vs. C.K. Rajan & Ors. (2003) 7 SCC 546]

12)     It   is   also   clear   that   the   High   Court   has   recorded   in   the 

impugned judgment dated 03.03.2009 that the counsel agreed 

with   instructions  from   the   plaintiff   and  reiterated  this  fact  in 

its order dated 28.08.2009 in Misc. Civil No. 13474 of 2009 in 

the   above-mentioned   RFA   while   rejecting   the   plea   of   the 

counsel   for   the   appellant   herein   that  he  did  not  give   consent 

that   he   had   no   instructions   from   his   clients     A   concession 

made   by   a   counsel   on   a   question   of   fact   is   binding   on   the 

client, but if it is on a question of law, it is not binding. [vide: 

Nedunuri Kameswaramma  vs  Sampati Subba Rao & Anr. 

(1963)   2   SCR   208,   225,  B.S.   Bajwa   &   Anr.   vs.   State   of  

Punjab & Ors. (1998) 2 SCC 523, 525-526]

                                                                                    8

.

13)     As   stated   earlier   and   the   reading   of   the   impugned 

judgment and order of the High Court, more particularly, para 

7,   which   is   concluding   paragraph,   clearly   show   that   it   is   a 

consent   order.     As   per   Section   96   (3)   of   the   Civil   Procedure 

Code,   no   appeal   lies   from   a   decree   passed   by   the   court   with 

the consent of the parties.  

14)   For all these reasons, more particularly, the statement of 

fact as noted in para 7 of the impugned judgment and order of 

the High Court, under Article 136, generally this Court will not 

interfere   with   the   order   of   the   High   Court   which   has   done 

substantial justice.

15)     Since   this   Court   has   stayed   the   impugned   order   of   the 

High Court while ordering of notice on 08.07.2010, Defendant 

No. 3 is granted 3 months' time from today to pay the amount 

as noted in para 7 of the impugned judgment and in the event 

of   default,   the   directions   of  the   High   Court   in   the   same   para 

are to be applied and implemented.  Defendant Nos. 1, 2, 4 to 

7 are directed to return the sum of Rs.1,53,000/- which they 

have   received   towards   sale   consideration   with   interest   at   the 

                                                                                 9

.

rate of 9 per cent from the date of payment within a period of 

eight weeks from today to the plaintiff.  

16)    Accordingly, the appeals fail and the same are dismissed 

with the above direction.  No order as to costs.  

                                        ...............................................J. 

                                        (P. SATHASIVAM)                                 

                                             

                                       ...............................................J. 

                                       (H.L. GOKHALE) 

NEW DELHI;

MAY 11, 2011.               

                                                                                            1

reconverted Hindu - wife - can file a case under Hindu marriage act - In her lengthy statement, she explained all the details including the fact that how she converted to Islam to marry a muslim and after divorce, by performing Shudhikaran ceremonies, she became a full fledged Hindu and there is no bar in marrying Hindu as per Hindu rites and ceremonies. She also explained that the appellant was aware of all these details and with full knowledge and consent, marriage of the appellant and the respondent was performed as per Hindu rites and ceremonies.

                                                           REPORTABLE


               IN THE SUPREME COURT OF INDIA


                CIVIL APPELLATE JURISDICTION


           CIVIL APPEAL NO.  4278             OF 2011

            (Arising out of S.L.P. (C) No. 1833 of 2010)





Flg. Officer Rajiv Gakhar                                  .... Appellant (s)



            Versus



Ms. Bhavana @ Sahar Wasif                             .... Respondent(s)





                           J U D G M E N T


P. Sathasivam, J.


1)  Leave granted.



2)   This appeal is directed against the final judgment and



order   dated   01.09.2009   passed   by   the   High   Court   of



Punjab   &   Haryana   at   Chandigarh   in   FAO   No.   72-M   of



2006   (O   &   M)   whereby   the   High   Court  allowed   the   appeal



filed   by   the   respondent   herein  and   set   aside   the   judgment



and   decree   passed   by   the   Additional   District   Judge-I,



Faridabad in favour of the appellant herein.



                                                                            1


3)  Brief facts:



(a)    The appellant is a pilot with the Indian Air Force and



was   posted   as   Pilot   Officer   at   Hakimpet   (Hyderabad)   in



April, 1997.  In the last week of April, 1997, the appellant



was   traveling   by   train   from   Delhi   to   Hyderabad   wherein



the respondent also happened to be traveling and at which



time she introduced herself as Bhavana and claimed to be



the   Vice   Principal   of   St.   Peters   Convent,   Vikas   Puri,   New



Delhi   and   a   journalist.            During   the   conversation,



respondent   claimed   to   be   a   spinster,   aged   27   years   and



disclosed   that   she   was   traveling   to   Hyderabad   in



connection with a book she was writing on Anglo Indians.



Much   later   the   appellant   learnt   that   she   had   visited



Hyderabad   for   appearing   in   her   B.A.   examination   from



Osmania University.



(b)     Subsequently,   both   of   them   met   at   Delhi   in   the   first



week   of   July,   1997   and   March,   1998   and   ultimately   the



respondent   tricked   the   appellant   into   marrying   her   on





                                                                           2


28.11.1999   at   Arya   Samaj   Mandir,   Rathkhana,   Bikaner,



Rajasthan   as   per   Hindu   rites   and   ceremonies.     The



respondent also gave a written affidavit to the Arya Samaj



Mandir   that   she   was   a   Hindu,   a   spinster   and   was   never



married before.  



(c)     In   January,   2000,   the   respondent's   father   met   the



appellant   at   Sona   Rupa   Restaurant   in   Nehru   Place,   New



Delhi   and   it   emerged   during   the   conversation   that   the



respondent was a Muslim and her actual name was Sahar



Wasif   and   her   previous   marriage   had   taken   place



according to Muslim Law with a Muslim-Wasif Khalil after



her   conversion   to   Islam   and   had   two   children   out   of   the



said wedlock, namely, daughter Heena (13 years) and son



Shaz   (11   years).     The   appellant   was   totally   shocked   and



devastated to hear all this.   On 22.07.2000, an FIR being



690/2000 was registered against the respondent and her



brother   under   Sections   406,   419   and   420   of   the   Indian





                                                                         3


Penal Code (in short `the IPC') at the Kalkaji Police Station,



New Delhi.



(d)   The appellant, thereafter, filed Suit No. 87 of 2000 in



the   Court   of   Addl.   District   Judge-I,   Faridabad,   under



Sections   5   and   12   of   the   Hindu   Marriage   Act,   1955   (in



short `the Act') seeking dissolution of marriage solemnized



on 28.11.1999 with the respondent at Arya Samaj Mandir,



Bikaner.  Before the trial Court, the appellant narrated as



to   how   he   was   deceived   and   cheated   by   the   respondent



and also claimed that the parties to the petition have been



living separately from the date of marriage itself and have



had no cohabitation and nor was there any consummation



for which reason no issue was born out of the wedlock.



(e)     The   trial   Court,   by   order   dated   07.03.2006,   declared



the  marriage  between  the  parties  to  the  petition  a  nullity



and   also   ordered   the   appellant   to   pay   Rs.   2,000/-   per



month   as   permanent   alimony   to   the   respondent   towards



her maintenance.





                                                                        4


(f)     Aggrieved   by  the   said  order,   the   respondent   preferred



an   appeal   before   the   High   Court   of   Punjab   &   Haryana



whereby   the   learned   Single   Judge   vide   his   order   dated



01.09.2009 allowed the appeal of the respondent and set



aside the judgment and decree passed by the Trial Court.



Aggrieved   by   the   said   order,   the   appellant   has   preferred



this appeal by way of special leave before this Court.



  4)     Heard   Mr.   Sanjay   Parikh,   learned   counsel   for   the



appellant-husband   and   Mr.   P.   N.   Misra,   learned   senior



counsel for the respondent-wife.



5)  It is the grievance of the appellant that the respondent



by         using         emotional         coercion,         impersonation,



misrepresentations,   fraud   and   cheating   tricked   the



appellant   to   marry   her   on   28.11.1999   at   Arya   Samaj



Mandi, Rathkhana, Bikaner.  It is also his claim that both



of them married as per Hindu rites and ceremonies.   The



respondent also gave a written affidavit to the Arya Samaj



for   the   performance   of   the   marriage   and   in   that   affidavit





                                                                         5


she claimed that she was a Hindu, a spinster and was not



married   before.     It   is   also   his   claim   that   after   marriage,



during   interaction   with   her   father   and  relatives,   he   came



to   know   that   the   respondent's   actual   name   was   Sahar



Wasif   and   that   she   had   converted   to   Islam   and   was



married   to   a   muslim,   she   had   2   children   out   of   her



previous wedlock, namely, Heena (13 years) and Shaz (11



years).     Though   the   respondent   has   denied   the   claim   of



the   appellant,   the   Court   of   the   first   instance,   namely,



Additional   Sessions   Judge   accepted   the   case   of   the



appellant   and   declared   the   marriage   between   the



appellant   and   the   respondent   a   nullity   and   directed   the



appellant   to   pay   a   sum   of   Rs.   2,000/-   per   month   as



permanent   alimony   to   the   respondent   towards   her



maintenance.  When the said order was challenged by the



respondent-wife,  the  High  Court,  by  impugned  judgment,



allowed her appeal and dismissed the petition filed by the



appellant-husband.





                                                                          6


6)     Learned   counsel   for   the   appellant   by   drawing   our



attention   to   various   factual   details   and   the   findings



arrived at by the trial Court submitted that the High Court



committed   an   error   in   dismissing   the   husband's   petition



to   declare   the   marriage   as   nullity.     He   also   relied   on



decisions   of   this   Court   in  Yamunabai   Anantrao   Adhav



vs.  Anantrao   Shivram   Adhav   and   Another  (1988)   1



SCC   530,  M.   M.   Malhotra  vs.  Union   of   India   &   Ors.



(2005) 8 SCC 351 and Gullipilli Sowria Raj vs. Bandaru


Pavani @ Gullipili Pavani  (2009) 1 SCC 714 in support


of his claim.     On the other hand, learned senior counsel



for   the   respondent-wife   by   taking   us   through   oral   and



documentary   evidence   led   in   before   the   courts   below



submitted   that   there   was   no   misrepresentation   or



cheating   on   the   part   of   the   respondent   and   in   fact   the



appellant was aware of all the details and before marriage



with   the   appellant,   the   respondent-wife   had   undergone



Shudhikaran   Ceremonies   and   she   was   deemed   to   have





                                                                        7


become   a   Hindu   after   such   ceremonies.     In   other   words,



according   to   him,   the   respondent   was   not   barred   from



contracting   marriage   with   a   Hindu   after   performing



Shudhikaran.



7)   Chapter  IV of  the  Hindu  Marriage  Act,  1955 (in  short



`the   Act')   deals   with   nullity   of   marriage   and   divorce.



Section   11   says   that   any   marriage   solemnized   after   the



commencement of this Act shall be null and void and may,



on a petition presented by either party thereto, or against



the   other   party   be   so   declared   by   a   decree   of   nullity   if   it



contravenes any one of the conditions specified in clauses



(i), (iv) and (v) of Section 5 of the Act.   Section 12 speaks



about voidable marriages.   According to this Section, any



marriage   solemnized,   whether   before   or   after   the



commencement of this Act, shall be viodable and may be



annulled   by   a   decree   of   nullity   on   any   of   the   following



grounds,   namely,   a)   that   the   marriage   has   not   been



consummated   owing   to   the   impotence   of   the   respondent,





                                                                                8


or b) that the marriage is in contravention of the condition



specified in clause (ii) of Section 5; or c) that the consent



of   the   petitioner/guardian   was   obtained   by   force   or   by



fraud   as   to   the   nature   of   the   ceremony   or   as   to   any



material fact or circumstance concerning the respondent;



or d) that the respondent was at the time of the marriage



pregnant   by   some   person   other   than   the   petitioner.



Chapter   II   deals   with   Hindu   marriages   and   Section   5



prescribes   conditions   for   a   Hindu   marriage.     The   section



begins   with   saying   that   a   marriage   may   be   solemnized



between   any   `two   Hindus'   subject   to   fulfilling   the



conditions   prescribed   therein.     It   is   clear   that   Hindu



marriage if is to be solemnized under Section 5 then both



the parties of such marriage must be Hindus.



8)  Though the trial Court granted decree holding that the



marriage   between   the   appellant   and   the   respondent   is   a



nullity, the materials placed by the respondent-wife in the



form  of  oral  and  documentary  evidence  clearly  show  that





                                                                       9


there was no contravention of any of the provisions, more



particularly,   Section   5   of   the   Act.     The   respondent   was



examined   before   the   trial   Court   as   RW1.     In   her   lengthy



statement, she explained all the details including the fact



that   how   she   converted   to   Islam   to   marry   a   muslim   and



after divorce, by performing Shudhikaran ceremonies, she



became   a   full   fledged   Hindu   and   there   is   no   bar   in



marrying Hindu as per Hindu rites and ceremonies.   She



also   explained   that   the   appellant   was   aware   of   all   these



details   and   with   full   knowledge   and   consent,   marriage   of



the   appellant   and   the   respondent   was   performed   as   per



Hindu   rites   and   ceremonies.     Mr.   P.   N.   Misra,   took   us



through   the   entire   evidence   of   RW1   in   order   to



substantiate   the   above   statement.     In   her   evidence,   she



explained in detail that her marriage with Wasif Khalil was



a   love   marriage   wherein   her   parents   had   also   consented.



She further deposed that she converted to Muslim religion



only at the time of marriage with Wasif Khalil which was





                                                                        10


solemnized in Mayur Vihar, Delhi in a Masjid.  At the time



of marriage, parents of both the parties to marriage were



present.     She   also   explained   that   at   the   time   when   she



had obtained divorce from Wasif by his saying Talaq three



times   in   March,   1995,   her   younger   brother   was   present.



She   also   admitted   that   she   was   not   having   any



documentary   evidence   for   the   same.                She   further



explained that after divorce with her Muslim husband, she



had   changed   her   name   from   Sahar   Wasif   to   Bhavana



which was her original name.   Immediately after the said



divorce,   according   to   her,   she   had   stated   using   her



original   name   Bhavana   and   she   had   undergone



Shudhikaran ceremonies for conversion to Hinduism just



after her divorce from her previous muslim husband.



9)     In   support   of   the   stand   taken   by   Respondent-wife   as



RW1, one K.V. Krishnayya, aged about 60 years, resident



of Ram Nagar, Market Lane, Hyderabad was examined as



RW2   by   way   of   an   affidavit.     He   explained   that   the





                                                                        11


respondent-Bhavana came to his house in the company of



his   daughter   K.   Aparna   in   the   month   of   April   1997.     On



one   occasion,   he   explained   that   both   Rajiv   Gakhar   and



Bhavana   came   to   his   house   and   on   making   enquiries



Bhavana   disclosed   that   she   is   a   born   Hindu   but   she



married to a Muslim and now she is a divorcee as she was



divorced   by   her   Muslim   husband   by   saying   Talaq   three



times  in  March,  1995  and  since  then  she  again  returned



to   her   previous   religion   (Hindu)   after   obtaining   the



Shudhikaran   ceremonies   by   calling   a   Pandit   and   by



chanting  Mantras.    She  also  disclosed  that  she  is  having



two   children   from   her   Muslim   husband.     RW2   also



enquired and verified the details about the appellant-Rajiv



Gakhar.   In other words, according to RW2, the appellant



was also aware of all the details about RW1 including her



religion even before their marriage.





                                                                         12


10)        One   Babu   Lal,   aged   about   65   years,   an



Astrologer/Karamkandi,   resident   of   Sector   8,   Faridabad



was examined as RW4.  He explained the details about the



Shudhikaran   ceremonies   that   were   performed   to   the



respondent.   According to him, it was done about 7 years



ago.     He   explained   that   Shudhikaran   ceremonies   were



performed by him on the eve of Puranmasi preceding Holi.



After recollection he mentioned that it was around March,



1997.   He asserted that after performance of ceremonies,



she   is   deemed   to   have   become   a   Hindu.     He   also   denied



the suggestion that pursuant to marriage of Bhavana who



was   earlier   a   Hindu   with   a   Muslim   and   having   two



children, she could not have returned to a Hindu fold.  He



also   asserted   that   Shudhikaran   of   Bhavana   and   her   two



children   were   carried   out   simultaneously   on   the   same



date   and   time   and   her   parents   were   also   present   on   this



occasion.





                                                                         13


11)     Another   important   witness   examined   on   the   side   of



the respondent is her brother Vibhu Ranjan as RW6.   He



explained that Bhavna Gakhar is his real elder sister and



they are Brahmins/Hindu by religion and the birth name



of his sister was Bhavana Sharma.  He also explained that



his   sister   first   married   with   a   Muslim   boy   and



subsequently   after   Talaq,   thereby   her   marriage   with



Muslim   came   to   an   end   permanently   forever.     He   also



elaborated   and   explained   that   in   the   month   of   March,



1997   on   the   eve   of   Holi   festival   the   Shudhikaran



ceremonies were performed in their house through Pandit



Babu   Lal   (RW4).     He   further   explained   that   Abhishek   by



gangajal   was   done   apart   from   chanting   of   Mantras



necessary   for   Shudhikaran.     Thus,   according   to   him,



Bhavana   returned   to   her   original   religion,   i.e,   Hindu   and



became   eligible   to   enter   into   marriage   with   any   Hindu



male.





                                                                       14


12)    The   analysis   of   the   assertion   of   the   respondent   as



RW1 and the evidence of RW2, RW4 and RW6 clearly show



that   the   respondent-wife   established   that   before   the



marriage   with   the   appellant   she   became   a   full-fledged



Hindu   by   performing   Shudhikaran   ceremonies   in   the



manner and being followed by Hindu custom and all these



material facts were known to the appellant at the time of



the   marriage.     In   view   of   these   factual   details,   the



decisions   relied   on   by   the   learned   counsel   for   the



appellant are not applicable to the case on hand.



13)     Mr.   Parikh   heavily   relied   on  Gullipilli   Sowria   Raj


(supra).    The   question   in   that   decision   was   whether   a


marriage entered into by a Hindu with a Christian is valid



under   the   provisions   of   the   Hindu   Marriage   Act,   1955.



After   finding   that   the   appellant-husband   therein   was   a



Roman   Catholic   Christian,   the   marriage   solemnized   in



accordance   with   Hindu   customs   was   a   nullity   and   its



registration   under   Section   8   of   the   Act   could   not   and/or





                                                                        15


did   not   validate   the   same.   In   view   of   the   said   factual



scenario, as rightly observed by the High Court, the ratio



in Gullipilli (supra) is not applicable to the case on hand.



14)     Inasmuch   as   the   respondent-wife   established   her



claim that on the date of marriage with the appellant she



was a Hindu and the same is permissible under Section 5



of the Act, we agree with the conclusion arrived at by the



High Court and reject the argument of the counsel for the



appellant.



15)     In   view   of   the   above   discussion   and   conclusion,   we



find   no   merit   in   the   appeal.     Consequently,   the   same   is



dismissed.        





                                      ..........................................J.

                                         (P. SATHASIVAM)




                                     ..........................................J.

                                       (H.L. GOKHALE)



NEW DELHI;

MAY 11, 2011.  





                                                                        16

since the person riding the motorcycle at the time of accident was a minor, the responsibility for paying the compensation awarded fell on the owner of the motorcycle.

                                                     REPORTABLE





                       IN THE SUPREME COURT OF INDIA



                         CIVIL APPELLATE JURISDICTION



           SPECIAL LEAVE PETITION (C) NO. 8660 OF 2009





JAWAHAR SINGH                                             ...   PETITIONER



                  Vs.



BALA JAIN & ORS.                                          ...   RESPONDENTS





                  WITH S.L.P.(C)NOS.864-865 OF 2010





                             J U D G M E N T





ALTAMAS KABIR, J.




1.         Notice was issued in the Special Leave Petition



(Civil) No.8660 of 2009 on 2nd April, 2009, confined



to         the         question         regarding         the         Petitioner's



liability   by   way   of   contributory   negligence   in   the



accident   which   occurred   on   18th                               July,   2004.


                                                                                 2





Special   Leave   Petition   (Civil)   Nos.864-865   of   2010



were   also   filed   by   the   Petitioner   against   National



Insurance   Company   Ltd.,   Jatin   and   the   heirs   of



Mukesh   Jain,   deceased.     A   brief   background   of   the



facts will help us to understand and appreciate the



case   of   the   Petitioner   better.   For   the   sake   of



convenience, the facts have been taken from Special



Leave Petition (Civil) No.8660 of 2009.





2.    On      18th  July,   2004,   at   about   1.20   p.m.   the



deceased,   Mukesh   Jain,   was   riding   his   two-wheeler



scooter   No.DAI   1835,   with   his   son,   Shashank   Jain,



as   pillion   rider.     According   to   the   prosecution



story,   when   they   had   reached   the   SDM's   Office,



Geeta         Colony,         Delhi,         a         motorcycle,         bearing



registration   No.   DL-7S-G-3282,   being   driven   in   a



very   rash   and   negligent   manner,   tried   to   overtake



the  scooter  and  in  that  process  struck  against  the



scooter   with   great   force,   as   a   result   whereof   the



deceased and his son were thrown on to the road and


                                                                     3





the   deceased   succumbed   to   the   fatal   injuries



sustained by him.





3.    A   claim   was   filed   by   the   widow,   two   daughters



and   one   son   of   the   deceased   before   the   Motor



Accident   Claims   Tribunal,   Karkardooma   Courts,



Delhi,   on   17th  August,   2004,   being   Suit   No.209   of



2004.  Suit  No.210  of  2005,  was  separately  filed  on



behalf   of   Master   Shashank   Jain,   son   of   the



deceased,   making   a   separate   claim   to   compensation



on   account   of   the   death   of   his   late   father   Mukesh



Jain.     Both   the   matters   were   taken   up   together   by



the  learned  Tribunal  which  disposed  of  the  same  by



a   common   Award   dated   12th  September,   2007.     By   the



said   Award,   the   Tribunal   awarded   a   sum   of        



8,35,067/- in favour of the claimants together with



interest   @7%   from   the   date   of   institution   of   the



petition,   namely,   17th  August,   2004,   till   the   date



of   realisation.   Certain   directions   were   also   given



in   the   Award   for   disbursement   of   the   said   amount.


                                                                     4





The   claim   of   the   Petitioner   No.3   was   settled   at



24,900/-.   The   insurer   was   held   liable   to   satisfy



the Award and to recover the amount from the owner



of the motorcycle.





4.    The said Award was challenged before the Delhi



High   Court   in   MAC   APP   No.697   of   2007,   which



disposed   of   the   same   on   10th  December,   2007,   by



upholding the judgment of the Motor Accident Claims



Tribunal.





5.    The   Delhi   High   Court   held   that   Jatin   was   a



minor   on   the   date   of   the   accident   and   was   riding



the   motorcycle   in   violation   of   the   provisions   of



the  Motor  Vehicles  Act,  1988,  and  the  Rules  framed



thereunder.     The   High   Court   also   relied   on   the



evidence   of   PW.8,   who   has   deposed   in   clear   and   in



no   uncertain   terms   that   the   accident   had   occurred



due   to   the   rash   and   negligent   driving   of   the



motorcycle   by   Jatin.     No   suggestion   was   given   to



the   said   witness   (PW.8)   that   the   accident   did   not


                                                               5





take place on account of rash and negligent driving



on   the   part   of   Jatin.        Such   deposition   went



unchallenged   and   became   final.   It   is   against   the



said order of the learned Single Judge of the Delhi



High Court and the order dated 26th  September, 2008



dismissing   Review   Application   No.333   of   2008,   that



the present Special Leave Petition has been filed.





6.    The   main   thrust   of   the   submissions   made   on



behalf   of   the   Petitioner   was   that   the   deceased,



Mukesh   Jain,   who   was   riding   the   two-wheeler



scooter,   was,   in   fact,   solely   responsible   for   the



accident.     Mr.   Rajesh   Tyagi,   learned   counsel   for



the   Petitioner,   contended   that   the   manner   in   which



the   accident   had   taken   place   would   indicate   that



the   deceased   had   contributed   to   a   large   extent   to



the   accident   and   such   fact   had   not   been   properly



appreciated   either   by   the   Motor   Accident   Claims



Tribunal or the High Court.   It was submitted that



too   much   of   importance   had   been   given   to   the


                                                                 6





evidence of PW.8, Head Constable Devender Singh. On



the   other   hand,   the   Tribunal   wrongly   discarded   the



testimony   of   R1W1   and   R1W2   as   they   were   minors.



Mr.   Tyagi   submitted   that   the   High   Court   had



proceeded on the basis that it had not been denied



on   behalf   of   the   Petitioner   herein   that   Jatin   was



driving   the   motorcycle   in   a   rash   and   negligent



manner and, hence, there was no reason to interfere



with the Award of the Tribunal.





7.    Mr.   Tyagi   submitted   that   the   Petitioner,



Jawahar   Singh,   had   no   liability   in   regard   to   the



incident,   as   would   be   evident   from   his   deposition



as R1W4, in which he admitted that he was the owner



of the motorcycle in question and that on 18th July,



2004   at   1.00   p.m.,   while   he   was   at   his   residence,



he   received   a   telephonic   message   indicating   that



his   nephew,   Jatin,   had   met   with   an   accident.     In



his   deposition,   he   stated   that   the   key   of   the



motorcycle was on the dining table of his house and


                                                                 7





without   his   knowledge   and   consent,   Jatin   took   the



keys   of   the   motorcycle   and   was,   thereafter,



involved   in   the   accident.     It   was   submitted   that



despite   the   same,   the   Motor   Accident   Claims



Tribunal   also   held   him   to   be   responsible   for   the



death of the victim in the accident and while a sum



of      8,35,067/-   with   interest   @7%   from   the   date   of



institution   of   the   petition   till   the   date   of



realisation was awarded in favour of the Claimants,



the   Insurance   Company,   which   was   directed   to   pay



the   said   amount   in   the   first   instance,   was   given



the  right  to  recover  the  same  from  the  Petitioner.



He   submitted   that   it   was   in   view   of   such   wrong



approach to the problem that the judgment and order



of   the   High   Court   impugned   in   the   Special   Leave



Petition was liable to be set aside.





8.      On   the   other   hand,   it   was   urged   by   learned



counsel for the Respondents, that the orders of the



Tribunal   and   the   High   Court   did   not   call   for   any


                                                                                        8





interference,   since   the   factum   of   rash   and



negligent   driving   by   Jatin   had   been   duly   proved



from the evidence of PW.8 and there was nothing at



all   to   show   that   the   deceased   had   in   any   way



contributed   to   the   accident   by   his   negligence   or



that the petitioner had taken sufficient precaution



to   see   that   his   motorcycle   was   not   misused   by   any



third party.





9.    On         behalf            of         Respondent         No.6,         National



Insurance   Company   Ltd.,   it   was   sought   to   be   urged



that   at   the   time   of   the   accident,   the   motorcycle



was   being   driven   in   breach   of   the   terms   and



conditions              of          the            Insurance          Policy         and,



accordingly,   the   Insurance   Company   could   not   be



held   liable   for   making   payment   of   the   compensation



awarded   by   the   Motor   Accident   Claims   Tribunal.



Apart from the fact that Jatin, who was riding the



motorcycle,   did   not   have   a   valid   driving   licence,



it had also been established that he was a minor at


                                                                   9





the   time   of   the   accident   and   consequently   the



Insurance   Company   had   been   rightly   relieved   of   the



liability   of   payment   of   compensation   to   the



Claimants   and   such   liability   had   been   correctly



fixed   on   the   owner   of   the   motorcycle,   Jawahar



Singh.   It has been well settled that if it is not



possible for an awardee to recover the compensation



awarded   against   the   driver   of   the   vehicle,   the



liability   to   make   payment   of   the   compensation



awarded   fell   on   the   owner   of   the   vehicle.     It   was



submitted that in this case since the person riding



the motorcycle at the time of accident was a minor,



the   responsibility   for   paying   the   compensation



awarded   fell   on   the   owner   of   the   motorcycle.     In



fact,   in   the   case   of  Ishwar   Chandra  Vs.  Oriental



Insurance   Co.   Ltd.  [(2007)   3   AD   (SC)   753],   it   was



held   by   this   Court   that   in   case   the   driver   of   the



vehicle   did   not   have   a   licence   at   all,   the



liability   to   make   payment   of   compensation   fell   on



the   owner   since   it   was   his   obligation   to   take


                                                                        10





adequate   care   to   see   that   the   driver   had   an



appropriate   licence   to   drive   the   vehicle.   Before



the   Tribunal   reliance   was   also   placed   on   the



decision in the case of National Insurance Co. Ltd.



Vs.  G.   Mohd.   Vani   &   Ors.  [2004   ACJ   1424]   and



National   Insurance   Co.   Ltd.  Vs.  Candingeddawa   &



Ors. [2005 ACJ 40], wherein it was held that if the



driver   of   the   offending   vehicle   did   not   have   a



valid   driving   licence,   then   the   Insurance   Company



after   paying   the   compensation   amount   would   be



entitled to recover the same from the owner of the



vehicle.  It was submitted that no interference was



called for with the judgment and order of the High



Court impugned in the Special Leave Petition.





10.    Having heard learned counsel for the respective



parties,   we   are   inclined   to   agree   with   the



Respondents      that      this      is      not      a      case      for



interference   in   view   of   the   fact   that   admittedly



the   motorcycle   belonging   to   the   Petitioner   was


                                                                    11





being driven by Jatin, who had no licence to drive



the   same   and   was,   in   fact,   a   minor   on   the   date   of



the   accident.     While   issuing   notice   on   2nd  April,



2009,   we   had   limited   the   same   to   the   question



regarding   liability   to   pay   compensation   on   account



of   contributory   negligence   by   the   deceased   who   was



riding   a   scooter,   in   causing   the   accident   to



happen.





11.    We cannot shut our eyes to the fact that it was



Jatin,   who   came   from   behind   on   the   motorcycle   and



hit   the   scooter   of   the   deceased   from   behind.     The



responsibility   in   causing   the   accident   was,



therefore,   found   to   be   solely   that   of   Jatin.



However,   since   Jatin   was   a   minor   and   it   was   the



responsibility of the Petitioner to ensure that his



motorcycle was not misused and that too by a minor



who   had   no   licence   to   drive   the   same,   the   Motor



Accident   Claims   Tribunal   quite   rightly   saddled   the



liability   for   payment   of   compensation   on   the


                                                                         12





Petitioner and, accordingly, directed the Insurance



Company   to   pay   the   awarded   amount   to   the   awardees



and,   thereafter,   to   recover   the   same   from   the



Petitioner. The said  question                has         been         duly



considered   by   the   Tribunal   and   was   correctly



decided.     The   High   Court   rightly   chose   not   to



interfere with the same.





12.    Without   going   into   the   merits   of   the   case,   we



are of the view that the story of Jatin, who was a



minor, walking into the house of the Petitioner and



taking   the   keys   of   the   motorcycle   without   any



intimation   to   the   Petitioner,   appears   to   be   highly



improbable   and   far-fetched.   It   is   difficult   to



accept  the  defence  of  the  Petitioner  that  the  keys



of   the   motorcycle   were   taken   by   Jatin   without   his



knowledge.     Having   regard   to   the   aforesaid   facts,



we   are   not   inclined   to   accept   the   case   of



contributory   negligence   on   the   part   of   the



deceased, attempted to be made out on behalf of the


                                                             13





Petitioner.     Accordingly,   since   the   notice   on   the



Special Leave Petition was confined to the question



of  contributory  negligence,  if  any,  on  the  part  of



the   deceased,   we   see   no   reason   to   interfere   with



the Award of the Motor Accident Claims Tribunal, as



confirmed   by   the   High   Court.     The   Special   Leave



Petitions   are,   accordingly,   dismissed,   but   without



any order as to costs.





                                         ................................................J.

                                             (ALTAMAS KABIR)





                                         ................................................J.

                                             (CYRIAC JOSEPH)

NEW DELHI

DATED:09.05.2011