REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6088 OF 2003
Kammana Sambamurthy (D) By LRs. ...Appellants
Versus
Kalipatnapu Atchutamma (D) & Ors. ...Respondents
WITH
CIVIL APPEAL NO. 7265 OF 2003
JUDGEMENT
R.M. Lodha, J.
The original contesting parties are dead. They are
now represented by their legal representatives. This is not
unusual when litigation goes on for more than 25 years.
2. These two appeals, one by the legal representatives
of Kammana Sambamurthy (original plaintiff) and the other by
legal representatives of Kalipatnapu Atchutamma (original
defendant no. 2) are directed against the judgment and decree
dated December 23, 2002 passed by the High Court of
Judicature, Andhra Pradesh, at Hyderabad. The High Court
modified the judgment and decree dated July 2, 1991 passed by
the Subordinate Judge, Anakapalli in a suit for specific
performance of the contract. The husband of defendant no. 2 -
Kalipatnapu Kamaraju - was original defendant no. 1; he is also
dead. For convenience, we shall refer to the original plaintiff, `the
vendee'; the original defendant no. 1, `the vendor' and the original
defendant no. 2, `the vendor's wife'. The facts, as we find them,
are shortly as follow.
3. On February 19, 1984, the vendor entered into an
agreement of sale (for short, `the agreement') with the vendee in
respect of a tiled house consisting of six rooms, verandah, three
mulgis upstair portion consisting of one room, hall and verandah
inclusive of entire area pertaining to the house along with the
entire vacant site situate in door no. 9.118 bearing assessment
116 at village Payakaraopet, District Visakhapatnam (for short,
`the property') for a consideration of Rs. 1,00,000/-. The vendee
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paid Rs. 10,000/- in advance and the remaining consideration of
Rs. 90,000/- was agreed to be paid at the time of execution and
registration of the sale deed. The vendor in the agreement
represented that he was absolute owner of the property. The
agreement reads as follows :
" SALE AGREEMENT DATED 19-2-1984
Absolute Sale Agreement for Rs. 100000/- (Rupees one
lakh) in respect of the immovable property i.e. tiled
house, building upon the tiled house inclusive of entire
vacant site pertaining to the house got executed and
delivered on 19-2-84 in favour of Kommana Samba
Murthy S/o Kommana Adaiah r/o Namavaran Village,
Nekkapalli Tq. Visakhapatnam District.
By
Kalipatanapu Kamaraju s/o Kalipatnapu
Suryanarayana r/o Payakaraopet Village, Ditto Tq. Ditto
District is as follows :-
II. As regards the property mentioned in para no. III in
schedule hereunder wherein I have possessed absolute
right and enjoyment and which fell to my share in the
partition effected in respect of immovable property with
my brothers about forty years back and ever since has
been in my possession and enjoyment and situated in
southern row of G.N.T. road of Payakaraopet village i.e.
the tiled house, six rooms, verandah, 3 mulgis upstair
portion consisting of one room, hall and verandah
inclusive of entire area pertaining to the house along with
the entire vacant site there of belonging to me. I have
settled to sell the same to you for the reason that I
attained old age and did not have any male children and
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with intention to spend my rest of life with any one of my
daughters and thinking that it is better to augment the
cash balances as you offered today higher price, then I
agreed there to and settled to sell the property to you.
Having regard for a sale consideration of Rs. 100000/-
(Rupees one lakh only) this agreement of sale has been
executed and delivered to you. Out of the sale
consideration you have paid Rs. 10000/- as advance in
the presence of undersigned witnesses at the time of
execution of this sale agreement and the same was
received by me. Therefore starting from this date you are
requested to pay by 20-6-84 the balance sale
consideration of Rs. 90000/- payable to me and shall get
the sale deed executed as per your plan on your name or
the name chosen by you on a proper stamp paper and
shall get the same registered and delivered to you at
your expense. Having assured you to the effect that
excepting me, none have got any right over this property
and having proved that the measurements, boundaries
and circumstances in respect of the property are proper
and correct and that this property had not been subjected
to any alienation by way of mortgages etc. and that it is
an undisputed property and after making you to so
believe this sale agreement has been executed and
delivered to you. The say situated on the rear side of the
house i.e. an extent of 3.9 feet in width and 91 feet in
length happens to be the common passage to this
property and also to Nudala Chekeenam Chokka Rao.
As requested by you I shall obtain the witness signatures
of my daughters who are near to me and those who are
living in far of areas, I shall get their voluntary consent
letters in your favour.
III. Situated in door No. 9.118 bearing assessment
116 a tiled house consisting of six rooms, verandah, 3
mulgis, upper terrace portion consisting of a room, hall
and verandah together with entire vacant site there of
situated in southern row of G.N.T. road of Payakaraopet
village and which has been included in Payakaraopet
grama panchayat limits in Nekkapalli Tq. Visakhapatnam
District and the boundaries whereof are as follows :-
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East : 196 feet vacant site belonging to Venkata
Ramalinga Swamy and others
South : 54 feet houses belonging to Nemmi
Gouraiah and others
West : 196 feet house, site belonging to Bekivalla
Bapi Raju
North : 37 feet, G.N.T. Road.
The house and vacant site comprising within the
aforesaid boundaries has been sold to you. This is the
absolute sale agreement get executed and delivered with
my consent."
4. On March 24, 1984, the vendor's wife sent a notice to
the vendee as well as vendor calling upon them to cancel the
agreement as she held half share in the property having
devolved upon her on the death of her son K. Appala
Suryanarayana Murthy. She stated in the notice that she was not
willing to sell her share and was ready to purchase the share of
the vendor (her husband).
5. On March 28, 1984, the vendee replied to the notice
sent to him by the vendor's wife and asserted that the agreement
was binding on her and the notice has been given in collusion
with the vendor.
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6. On March 30, 1984, the vendee sent a notice to the
vendor calling upon him to receive the balance sale consideration
of Rs. 90,000/- from him and execute the sale deed along with his
wife (if she has any right in the property) as per the terms of the
agreement failing which he may be constrained to initiate action
for necessary reliefs.
7. On April 21, 1984, the vendor sent reply to the
vendee's notice dated March 30, 1984 informing him that he was
unable to execute sale deed in the vendee's favour and he may
take back sum of Rs. 10,000/- that was paid in advance.
8. The vendee then filed a suit for specific performance
of the agreement against the vendor and his wife. He prayed for
a direction to them to execute sale deed as per the terms of the
agreement and get it registered after taking the remaining sale
consideration of Rs. 90,000/- and if they fail to execute the same
as per the directions of the court, then court may execute the
sale deed after the vendee deposits the balance sale price within
time allowed by the court. In the alternative, the vendee prayed
for refund of the advance amount along with interest.
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9. The vendor and his wife filed separate written
statements. The vendor admitted execution of agreement and
receipt of advance amount of Rs. 10,000/-. The vendor averred
that he had one son, K. Appala Suryanarayana Murthy who had
half share in the property; he died intestate and after his death,
his half share devolved upon his wife and thus he does not have
absolute title to the property and unable to execute the sale deed.
10. The vendor's wife mainly set up the plea that her son
died intestate and she succeeded to his share; her husband is not
the absolute owner of the property; she is not willing to part with
her share and she has already asked her husband to sell his
share to her.
11. The Subordinate Judge, Anakapalli in light of the
pleadings of the parties framed issues and after recording the
evidence and hearing the parties decreed the suit in the following
manner :
"In the result, the suit is decreed with costs and with a
direction that the defendants 1 and 2 shall execute
registered sale deed as per the terms of the sale
agreement dated 19-2-84 in favour of the plaintiff after
taking the remaining sale consideration of Rs. 90000/-
on or before 2-9-91 at the costs of the plaintiff and the
plaintiff is hereby directed to be get ready with the
remaining sale consideration by Rs. 90000/- and
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expenses for registration on or before 3-9-1991 by
informing the defendant for its registration......."
12. The vendor's wife being not satisfied with the
judgment and decree dated July 2, 1991 passed by the
Subordinate Judge, Anakapalli preferred first appeal before the
High Court. The High Court in view of the contentions raised
before it formulated the following points for determination :
"1) Whether the suit house is the ancestral property
of the first defendant?
2) Whether the suit house contract of sale binds the
second defendant?
3) Whether the second defendant has got the right
to purchase the half share of the first defendant?
4) Whether the suit contract of sale is not voidable
having been made by the ostensible owner, the
first defendant and as the plaintiff acted in good
faith?
5) To what relief?"
13. The High Court recorded the findings namely, that on
the basis of the factual matrix and the evidence adduced by the
defendants, it was made out that the vendor and his wife had a
son who died intestate and that the property was ancestral
property in which the deceased son had half share and that share
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devolved upon the vendor's wife; the vendee cannot be said to
have any knowledge that the vendor's wife had half share and in
the absence of any express authority from his wife, the vendor
could not alienate or otherwise dispose of her share in the
property. The High Court did not accept the plea of the vendee
that vendor had implied authority or that vendor's wife was
estopped from raising the plea that the agreement did not bind
her. The High Court finally held that the agreement of sale
although covered the entire property but as the vendor had only
half share and interest in the property, the decree for specific
performance could only be granted to the extent of the vendor's
share in the property. The High Court, accordingly, allowed the
appeal preferred by vendor's wife to the extent of half share in the
property and the judgment and decree of the Subordinate Judge
was confirmed to the extent of half share of the vendor in the
property.
14. We heard Mrs. Sudha Gupta, learned counsel for the
legal representatives of the vendee and Mr. A.T.M. Sampath,
learned counsel for the legal representatives of the vendor's wife.
15. Mr. A.T.M. Sampath, learned counsel for the vendor's
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wife would have us believe that the agreement is not an
agreement of sale but an invitation to offer as it is only signed by
the vendor. We are not impressed. That the agreement is an
agreement of sale and there has been concluded contract in this
regard between the vendor and vendee has not at all been in
dispute. The vendor in his reply dated April 21, 1984 to the notice
received from the vendee did not dispute the nature of the
agreement. In the plaint, the vendee made the following
averment with regard to the agreement:
".......The 1st defendant offered to sell the plaint
schedule house and site representing that he has got
absolute title in them and that no others have got title
in the said property. The plaintiff accepted to purchase
the property after making due inquiries. After mutual
deliberations the plaintiff offered to purchase the suit
schedule property for one lakh rupees. The first
defendant executed sale agreement on 19-2-1984 in
favour of the plaintiff, agreeing to sell the suit property
to plaintiff for the said sum of one lakh and also
agreeing to receive the balance of consideration on or
before 20-6-1984 and to execute registered sale deed
at the expense of the plaintiff in favour of plaintiff or to
his order and also undertaking to get his daughters
and make them attest the sale deed. The plaintiff paid
Rs. 10000/- (Rupees ten thousand only) as advance at
the time of the said sale agreement. The first
defendant undertook to deliver possession of the suit
schedule property on the date of sale deed......."
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The vendor filed written statement and therein he admitted
execution of the agreement in the following words :
".....The averments that this defendant executed a sale
agreement on 19-2-1984 in favour of plaintiff offering to
sell the schedule house and site for a sale consideration
of Rs. 100000/- (one lakh) agreeing to receive the
balance of sale consideration on or before 20-6-1984
and to execute a sale deed at the expense of the
plaintiff and that on the date of sale agreement received
an amount of Rs. 10000/- towards sale consideration
are true....."
16. As a matter of fact, in view of the admitted position
between the parties, particularly, the vendor and vendee about
the agreement, no issue was struck by the trial court in this
regard nor any argument was advanced on behalf of the vendor
before the trial court that the agreement was not an agreement of
sale or that the same did not tantamount to concluded contract.
Insofar as vendor is concerned, he did not challenge the
judgment and decree passed by the trial court. It was only
vendor's wife who filed appeal being not satisfied with the
judgment and decree dated July 2, 1991 passed by the
Subordinate Judge before the High Court. Even before the High
Court, no plea was raised by the vendor's wife or the vendor that
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the agreement is not a concluded contract for sale of the
property. The submission of Mr. A.T.M. Sampath that the
agreement is not an agreement of sale but an invitation to offer is
afterthought and does not merit further consideration.
17. As to whether the property is ancestral property or
not, the finding of the two courts is divergent. The trial court held
that the property was not the ancestral property but the High
Court on reappraisal of the evidence did not agree with that
finding. The High Court considered the matter thus :
".......Whatever may be the reason behind in getting
Ex.A2 notice issued while seeking to avoid Ex.A2
transaction, the legal position cannot be doubted that half
share in the suit house was devolved upon the second
defendant on account of the death of her son, in as much
as by birth, the son got half share along with his father in
the ancestral property and the mother succeeded to the
same as Class I heir. It is also clear that under section 14
of the Hindu Succession Act, the share devolved upon
the mother would become the Streedhana property. The
husband under such circumstances, in the absence of
any express authority from the wife cannot alienate or
otherwise dispose of the Streedhana property of his
wife......."
In our view, the High Court has considered this aspect in the right
perspective and we find no justifiable reason to take a view
different from the High Court.
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18. Having regard to the conclusion that the vendor's wife
has got half share in the property and that she is not executant to
the agreement, what needs to be considered is, whether the
agreement binds the vendor's wife. According to vendee, the
vendor had implied authority to enter into agreement of the
property and the vendor's wife was clearly aware of that
agreement and, therefore, she is estopped from raising the plea
that she is not bound by that agreement. The High Court
considered the evidence on record and held that no express or
implied authority by the wife in favour of her husband is
discernible from the facts and evidence. We agree. As regards
applicability of Section 41 of the Transfer of Property Act, 1882
(T.P. Act), the High Court observed that it was not even the case
of the vendee that the vendor was the ostensible owner of the
property and, therefore, Section 41 has no application. We think
that High Court is right and in view of the aforenoticed findings of
the High Court, the conclusion that vendee is not entitled to seek
specific performance of the agreement to the extent of half share
of vendor's wife cannot be faulted.
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19. The crucial question in the case is whether the
agreement could be enforced against the vendor to the extent of
his half share in the property. The terms of the agreement show
that the vendor represented to the vendee that he was absolute
owner of the property that fell to his share in the partition effected
with his brothers and he did not have any male child. The vendor
assured the vendee that excepting him none has got any right
over the property and he would obtain the witness signatures of
his daughters and get their voluntary consent letters in his favour.
It is clear from the evidence that the vendee had no knowledge
that vendor's wife has half share in the property which devolved
upon her on the death of her son intestate.
20. Section 12 of the Specific Relief Act, 1963 reads as
follows :
"S.- 12. Specific performance of part of contract.-
(1) Except as otherwise hereinafter provided in this
section, the court shall not direct the specific
performance of a part of a contract.
(2) Where a party to a contract is unable to perform the
whole of his part of it, but the part which must be left
unperformed by only a small proportion to the whole in
value and admits of compensation in money, the court
may, at the suit of either party, direct the specific
performance of so much of the contract as can be
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performed, and award compensation in money for the
deficiency.
(3) Where a party to a contract is unable to perform the
whole of his part of it, and the part which must be left
unperformed either-
(a) forms a considerable part of the whole, though
admitting of compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of the other
party, direct the party in default to perform specifically
so much of his part of the contract as he can perform, if
the other party-
(i) in a case falling under clause (a), pays or has paid
the agreed consideration for the whole of the contract
reduced by the consideration for the part which must be
left unperformed and a case falling under clause (b),
pays or had paid the consideration for the whole of the
contract without any abatement; and
(ii) in either case, relinquishes all claims to the
performance of the remaining part of the contract and all
right to compensation, either for the deficiency or for the
loss or damage sustained by him through the default of
the defendant.
(4) When a part of a contract which, taken by itself, can
and ought to be specifically performed, stands on a
separate and independent footing from another part of
the same contract which cannot or ought not to be
specifically performed, the court may direct specific
performance of the former part."
21. Section 12 prohibits specific performance of a part of
a contract except in the circumstances under sub-sections (2), (3)
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and (4). The circumstances mentioned in these sub-sections are
exhaustive. Is Section 12 attracted in the facts and circumstances
of the present case? We do not think so. The present case is not
a case of the performance of a part of the contract but the whole
of the contract insofar as the vendor is concerned since he had
agreed to sell the property in its entirety but it later turned out that
vendor had only half share in the property and his wife held the
remaining half. The agreement is binding on the vendor as it is
without being fractured. As regards him, there is neither
segregation or separation of contract nor creation of a new
contract. In Kartar Singh v. Harjinder Singh & Ors.1, this Court
was concerned with a case where vendor--brother and a sister
had each half share in the suit properties. The agreement for the
sale was executed by the brother concerning the suit properties in
which the sister had half share. The sister was not executant to
the agreement; rather she refused to accept the agreement. The
question for consideration before this Court was whether
agreement could be enforced against the vendor--brother to the
extent of his half share. This Court considered Section 12 and
held as under :
1 (1990) 3 SCC 517
16
"5. We are, therefore, of the view that this is not a case
which is covered by Section 12 of the Act. It is clear
from Section 12 that it relates to the specific
performance of a part of a contract. The present is not a
case of the performance of a part of the contract but of
the whole of the contract so far as the contracting party,
namely, the respondent is concerned. Under the
agreement, he had contracted to sell whole of his
property. The two contracts, viz. for the sale of his share
and of his sister's share were separate and were
severable from each other although they were
incorporated in one agreement. In fact, there was no
contract between the appellant and the respondent's
sister and the only valid contract was with respondent in
respect of his share in the property.
6. As regards the difficulty pointed out by the High
Court, namely, that the decree of specific performance
cannot be granted since the property will have to be
partitioned, we are of the view that this is not a legal
difficulty. Whenever a share in the property is sold the
vendee has a right to apply for the partition of the
property and get the share demarcated. We also do not
see any difficulty in granting specific performance
merely because the properties are scattered at different
places. There is no law that the properties to be sold
must be situated at one place. As regards the
apportionment of consideration, since admittedly the
appellant and respondent's sister each have half share
in the properties, the consideration can easily be
reduced by 50 per cent which is what the first appellate
court has rightly done."
22. Kartar Singh1 has been followed by this Court in
Manzoor Ahmed Magray v. Ghulam Hassan Aram & Ors2. In
Manzoor Ahmed Magray2, this Court considered the matter in the
context of Section 15 of J & K Specific Relief Act, 1977 which is
2 (1999) 7 SCC 703
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pari materia to Section 12 of Specific Relief Act, 1963. This Court
said :
".......Hence, there is no bar for passing the decree for
specific relief with regard to 1/3rd or 2/3rds share owned
by the contracting party for which he can execute the
sale deed. For the share of Ghulam Rasool (brother of
Defendant 1) admittedly, no decree is passed by the
High Court. Dealing with the similar contention where
agreement was for sale of property belonging to a
brother and sister each having a half share, the Court in
Kartar Singh v. Harjinder Singh held that when the
absentee vendor, for some reason or the other refused
to accept the agreement, there is no reason why the
agreement should not be enforced against the vendor
who had signed and his property is identifiable by
specific share. The Court further held that such case is
not covered by Section 12 of the Specific Relief Act,
1963 which relates to specific performance of a part of a
contract. Such type of case would be the case of
specific performance of the whole of the contract so far
as the contracting party is concerned. Further,
whenever a share in the property is sold the vendee has
the right to apply for the partition of the property and get
the share demarcated. Hence there would not be any
difficulty in granting specific performance of the contract
to the extent to which it is binding between the parties."
23. In the case of A. Abdul Rashid Khan (Dead) & Ors. v.
P.A.K.A. Shahul Hamid & Ors.3, this Court held that even where
any property is held jointly and once any party to the contract has
agreed to sell such joint property by agreement, then, even if the
other co-sharer has not joined, at least to the extent of his share,
the party to the contract is bound to execute the sale deed. In that
3 (2000) 10 SCC 636
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case, the suit property originally belonged to one Aziz Khan. On
his death, his heirs under the Muslim law--nine sons and two
daughters inherited that property. The sons agreed to sell that
property to the first respondent therein. However, some dispute
arose between the parties and that necessitated the first
respondent therein to file the suit for specific performance in
which the executants of the agreement as well as the two
daughters of Aziz Khan were impleaded as defendants. It was
admitted case that the daughters of Aziz Khan had not joined in
the agreement of sale. The trial court dismissed the suit by
holding that the agreement was indivisible and could only be
enforced if the daughters of Aziz Khan agreed. The first
respondent therein preferred an appeal before the High Court
against the judgment and decree of the trial court. The High Court
held that he had not pleaded and proved that the daughters of
Aziz Khan had agreed to sell the suit property and hence, it
cannot be held that the said agreement was by all the heirs of
Aziz Khan. The two daughters of Aziz Khan were held not bound
by the agreement. However, the High Court held that insofar as
the executants of the agreement (sons of Aziz Khan) were
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concerned they were bound by it and valid and enforceable
contract existed between the first respondent and the sons of
Aziz Khan. The High Court, accordingly, granted decree for
specific performance to the extent of 5/6th shares which Aziz
Khan's sons had in the property. This Court affirmed the decree
of the High Court and it was held that plaintiff's suit for specific
performance to the extent of 5/6th share was rightly decreed by
the High Court warranting no interference. While holding so, this
Court relied upon earlier decision in the case of Manzoor Ahmed
Magray2.
24. In view of the above decisions of this Court and the
facts and circumstances which have already been noticed by us,
in our opinion, there is no impediment for enforcement of the
agreement against the vendor to the extent of his half share in
the property. However, Mr. A.T.M. Sampath, learned counsel for
the vendor's wife placed great reliance upon HPA International v.
Bhagwandas Fateh Chand Daswani & Ors.4 and, particularly, the
following paragraphs of the report.
"67. If the vendee intended to seek conveyance
separately of the life interest of the vendor, the earliest
opportunity for him was when he had received notice
4 (2004) 6 SCC 537
20
dated 11-9-1979 sent through the lawyer by the vendor
cancelling the contract. Assuming that at that time he
could not opt for lesser relief as the suit for sanction was
pending, he could have, in any case, opted for
conveyance of life interest of the vendor soon after he
came to know of the negotiations for sale with Bob
Daswani, which took place in the presence of one of the
partners of the plaintiff vendee. Even after deriving the
knowledge of the execution of the sale deed dated 29-
12-1979 Ext. D-1, the option to obtain lesser relief of
transfer of life interest was not exercised. It was
exercised as late as on 25-11-1986 by filing an affidavit
and at the time when pleadings of the parties were
completed and the joint trial in the two suits had already
commenced. During long pendency of the suits between
1979 to 1986, the parties interested in the property
changed their positions. The vendor by executing a
registered sale deed in favour of the subsequent vendee
got his public dues paid to relieve the pressure on the
property and obtained market price of the property. After
obtaining possession of the property pursuant to the sale
deed, the subsequent vendee has raised construction
and inducted tenants. Accepting the legal stand based
on Sections 90, 91 and 92 of the Indian Trusts Act that
the subsequent vendee, being a purchaser with
knowledge of prior agreement, is holding the property as
a trustee for the benefit of the prior vendee, the vendor,
who changed his position by effecting a subsequent sale
cannot be compelled to convey his life interest when
such lesser relief was not claimed at the earliest
opportunity and the terms of the contract did not
contemplate transfer of life interest alone."
98. The above argument has no merit and the
aforesaid decision is hardly of any help to the vendee.
This is not a case where the vendor had only right of
spes successionis and after execution of agreement of
sale, he subsequently acquired full interest in the
property to be held bound by Section 43 of the Transfer
of Property Act. In the case before us, the reversioners
were not parties to the agreement of sale. When in the
suit for sanction to transfer their interest they were made
parties and were noticed, they expressly objected to the
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proposed transfer. No principle of estoppel or provisions
of Section 43 of the Transfer of Property Act can,
therefore, operate against them. So far as the
subsequent vendee is concerned, in the course of suit,
he was pushed to a position in which he could not take a
stand that he had no knowledge of the prior agreement
with the vendee but he has separately purchased life
interest from the vendor and obtained separate release
deeds, on payment of consideration, from the
reversioners. The reversioners being not parties to the
sale agreement, Ext. P-1 entered into with the vendee,
the latter could not enforce the contract, Ext. P-1 against
the former."
It is sufficient to say that the agreement of sale and the facts
which their Lordships had to consider in the case of HPA
International4 were in many respects different from the agreement
in the present case. In that case vide agreement of sale (Exhibit
P1) therein, full interest in the property, i.e. life interest of the
vendor and spes successionis of reversioners with sanction of the
court was agreed to be sold. The reversioners were not parties to
the sale agreement that was entered with the vendee therein.
The parties were conscious that the vendor had only life interest
in the property and he could not convey more than his own
interest. The court found that vendee entered into a speculative
deal for obtaining full interest in the property depending upon the
sanction to be granted by the court. In the backdrop of these
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facts, this Court observed in paragraphs 68, 69 and 70 of the
report thus :
"68. On duly appreciating the evidence on record,
construing specific terms of the contract and
considering the conduct of the parties, we have arrived
at the conclusion that the rescission of the contract, due
to non-grant of sanction by the Court within two years
after execution of the contract and filing of the suit for
sanction, was not an act of breach of contract on the
part of the vendor to justify grant of relief of specific
performance of the contract to the prior vendee.
69. We are also of the view that the plaintiff vendee, by
his own act in the pending suits, was responsible for
rendering the suit for sanction as infructuous. He was
guilty of lapse in not seeking conveyance of life interest
of the vendor at the earliest opportunity when notice of
rescission of the contract was received by him and later
when he derived the knowledge of execution of
registered sale deed in favour of the subsequent
vendee. The option was exercised conditionally in the
midst of the joint trial of the two suits.
70. There was one integrated and indivisible contract by
the vendor to convey full interest in the property i.e. his
own life interest and the interest of the reversioners with
sanction of the Court. As the Court had not granted the
sanction, the contract could not be specifically enforced.
The lesser relief of transfer of life interest was not
claimed within a reasonable time after the vendor had
intimated that the contract, as agreed for full interest,
was not possible of performance. We find that neither
equity nor law is in favour of the plaintiff vendee."
The Court further observed in paragraph 100 of the report as
follows :
23
"100. In the case before us, we have not found that the
vendor was guilty of rendering the suit for sanction
infructuous. It did terminate the contract pending the suit
for sanction but never withdrew that suit. The vendee
himself prosecuted it and rendered it infructuous by his
own filing of an affidavit giving up his claim for the
interest of reversioners. In such a situation where the
vendor was not in any manner guilty of not obtaining the
sanction and the clause of the contract requiring the
Court's sanction for conveyance of full interest, being for
the benefit of both the parties, the contract had been
rendered unenforceable with the dismissal of the
sanction suit."
HPA International4 , thus, have no considerable bearing on the
case in hand.
25. Mr. A.T.M. Sampath, learned counsel for vendor's
wife also argued that she had offered as joint owner to the
undivided entire property to purchase the half share of her
husband under the Partition Act, 1893 and Hindu Succession
Act, 1956. He would submit that at the earliest point of time both
in a notice as well as in the written statement she has raised the
plea of pre-emption to buy her husband's share and demanded
the vendee as well as her husband to sell undivided half share to
her. In this regard, he further submitted that the property is an
undivided dwelling house and the court should not grant specific
performance against the co-owners of the family dwelling house.
24
He relied upon Ghantesher Ghosh v. Madan Mohan Ghosh &
Ors.5, Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and
Ors.6 and Shanmughasundaram & Ors. v. Diravia Nadar (Dead)
By LRs. & Anr.7.
26. The above submission was also canvassed before
the High Court. The High Court considered this aspect in the
following manner :
"It is too premature for the defendant to have invoked
the provisions of section 4 of the Partition Act. The
plaintiff's right has not been crystallized yet and he
cannot at this stage be considered as a purchaser of the
undivided interest of the first defendant. In order to
validly invoke section 4 of the Partition Act, the following
five conditions have to be satisfied :
1. A co-owner having undivided share in the family
dwelling house should effect transfer of his undivided
interest therein;
2. The transferee of such undivided interest of co-
owner should an outsider or stranger to the family;
3. Such transferee much sue for partition and
separate possession of the undivided share transferred
to him by the co-owner concerned;
4. As against such a claim of the stranger
transferee, any member of the family having undivided
share in the dwelling house should put forward his claim
of preemption by undertaking to buy out the share of
such transferee and;
5 (1996) 11 SCC 446
6 (2005) 5 SCC 492
7 (2005) 10 SCC 728
25
5. While accepting such a claim for preemption by
the existing co-owners of the dwelling house belonging
to the undivided family, the Court should make a
valuation of the transferred share belonging to the
stranger transferee and made the claimant co-owner
pay the value of the share of the transferee so as to
enable the claimant co-owner to purchase by way of
pre-emption and said transferred share of the stranger
transferee in the dwelling house belonging to the
undivided family so that the stranger-transferee can
have no more claim left for partition and separate
possession of his share in the dwelling house and
accordingly can he effectively deny entry in any part of
such family dwelling house.
The whole object seems to be to preserve the
privacy of the family members by not allowing a
stranger to enter in a part of the family dwelling house.
Such is not the situation obtaining in this case having
regard to the context. I am reinforced in my above view
by the judgment of the Apex Court in Babulal V.
Habibnoor Khan, 2000 (5) SCC 662. The apex Court
placing reliance upon its earlier judgment in Ghantesher
Ghosh V. Madan Mohan Ghosh, 1996 (11) SCC 446
reiterated the five essential requisites. For the foregoing
reasons, the contention of the learned counsel merits no
consideration."
In our opinion, the High Court has rightly concluded that at the
present stage, Section 4 of the Partition Act, 1893 is not attracted.
It is only after the sale deed is executed in favour of the vendee
that right under Section 4 of the Partition Act, 1893 may be
available. Similarly, insofar as vendee is concerned, he has right
to apply for partition of the property and get the share demarcated
26
only after sale deed is executed in his favour. Section 44 of the
T.P. Act is also of no help to the case of vendor's wife.
27. There are two other points raised by Mr. A.T.M.
Sampath. Learned counsel for the vendor's wife would contend
that it has not been proved that vendee has been ready and
willing to purchase the property all along; the vendee did not
produce passbook showing that he had sufficient funds and the
vendee did not deposit the remaining consideration of Rs.
90,000/- within three months of the decree granted by the trial
court. The argument of Mr. A.T.M. Sampath has no merit at all
and seems to have been raised in desperation. As a matter of
fact, as early as on March 30, 1984, the vendee sent a notice to
the vendor calling upon him to receive the balance sale
consideration of Rs. 90,000/- from him and execute the sale
deed. In the plaint, a specific averment with regard to readiness
and willingness has been made by the vendee which was not
even controverted by the vendor in the written statement. No
such issue has been raised nor it was pressed by the vendor
before the trial court. Even the vendor's wife in the appeal before
the High Court did not raise any argument in this regard. At the
27
time of hearing of these appeals, we were informed by the
counsel for the vendee that the balance sale consideration of Rs.
90,000/- has been deposited by the vendee on July 18, 1991 vide
T.R. Challan No. 1159 before the trial court and has been lying
there for more than 19 years. This argument of Mr. A.T.M.
Sampath is, therefore, rejected.
28. The other point argued by Mr. A.T.M. Sampath is that
the decree granted by the High Court would result in hardship
since the vendor and vendor's wife are dead and their 10
daughters are residing in the property. We are afraid these facts
hardly constitute hardship justifying denial of decree for specific
performance to the extent of vendor's half share in the property.
29. In all fairness to Mr. A.T.M. Sampath, it must be said
that he cited some English decisions but, in our view, these
decisions have no bearing at all in the present case and it is for
this reason that we have not burdened this judgment by referring
to those decisions.
30. In view of the above, we agree that the decision of the
High Court is right and, consequently, both the appeals must be
dismissed and are dismissed with no order as to costs.
28
.....................J.
(P. Sathasivam)
.................... J.
(R.M. Lodha)
NEW DELHI,
OCTOBER 8, 2010
29
