“Where there is a sale of the same property in
favour of a prior and subsequent transferee
and the subsequent transferee has, under the
conveyance outstanding in his favour, paid
the purchasemoney to the vendor, then in a
suit for specific performance brought by the
prior transferee, in case he succeeds, the
question arises as to the proper form of
decree in such a case. The practice of the
Courts in India has not been uniform and
three distinct lines of thought emerge.
According to one point of view, the proper
form of decree is to declare the subsequent
purchase void as against the prior transferee
and direct conveyance by the vendor alone.
A second considers that both vendor and
vendee should join, while a third would limit
execution of the conveyance to the
subsequent purchaser alone. According to
the Supreme Court, the proper form of decree
is to direct specific performance of the
contract between the vendor and the prior
transferee and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
prior transferee. He does not join in any
special covenants made between the prior
transferee and his vendor; all he does is to
pass on his title to the prior transferee.”
Hon'ble Mr. Justice Abhay Manohar Sapre
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5177 OF 2009
Vijay A. Mittal & Ors. ….Appellant(s)
VERSUS
Kulwant Rai (Dead) Thr. LRs.
& Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment
and order dated 21.12.2007 passed by the High Court
of Punjab & Haryana at Chandigarh in RSA No.1537 of
1993 whereby the Single Judge of the High Court
dismissed the regular second appeal filed by the
appellants herein and upheld the judgment/decree
1
dated 15.04.1993 of the First Appellate Court in C.A.
No.7 of 15.02.1992.
2. In order to appreciate the controversy involved in
this appeal, it is necessary to set out the relevant facts
hereinbelow.
3. Appellant Nos.1 to 4 and 7 are the legal
representatives of the original defendant No.1Amar
Nath. Appellant No.5 (Yash Pal Mittal), who was the
original defendant No.2 also died and he is now
represented by his legal heirs (i) Rita Mittal (ii)
Akanksha and (iii) Akshay Mittal and Appellant No.6
(Sunil Mittal) is the original defendant No.3 whereas
respondent No.1 (Kulwant Rai) is the original plaintiff,
who also died and is now represented by his legal heirs
(i) Sudesh Goel, (ii) Ajay Goel and (iii) Sanjay K. Goel
and respondent No.2 (Atul Kumar) is the original
plaintiff No.2 in the civil suit out of which this appeal
arises.
2
4. In short, the civil suit out of which this appeal
arises was originally filed by one Kulwant Rai as
plaintiff No.1 and Atul Kumar as plaintiff No.2 against
the defendants, namely, (1) Amar Nath, (2) Yash Pal
Mittal, (3) Sunil Mittal and (4) Bal Kishandas.
5. During the pendency of the civil suit, Kulwant
Rai (Plaintiff No.1), Amar Nath (defendant No.1) and
Yashpal Mittal (defendant No.2) died and, therefore,
their legal representatives, on whom the right to sue
devolved as detailed above, were brought on record in
places of the original plaintiff/defendants in the civil
suit to enable them to continue the lis on behalf of
those who died.
6. As mentioned above, two aforementioned
plaintiffs (respondents herein) filed a civil suit against
the aforementioned four defendants (appellants herein)
on 19.03.1982 claiming a relief of specific performance
of the agreement dated 12.06.1979 in relation to the
suit property (as detailed in the plaint) situated at
3
Narain Dass Building, Durga Charan Road, Ambala
Cantt.
7. The suit was founded on the agreement dated
12.06.1979 entered into between the plaintiffs and the
defendant No.1 (Amar Nath) for sale of the suit
property for a sum of Rs.46,000/. According to the
plaintiffs, they paid a sum of Rs.5,000/ by way of
earnest money to defendant No.1 (Amar Nath) and the
sale deed in relation to the suit property was to be
executed on or before 31.12.1979 by defendant No.1
(Amar Nath) in favour of the plaintiffs on paying the
balance consideration before the subRegistrar.
8. It was alleged that defendant No.1 (Amar Nath)
instead of selling the suit property to the plaintiffs in
terms of agreement dated 12.06.1979 sold it to
defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs
alleged that they were ready to perform their part of
the agreement but it was defendant No.1 (Amar Nath)
who failed to perform his part and committed breach
4
by selling the suit property to defendant Nos. 2 and 3
on a higher price and, therefore, the plaintiffs were
constrained to file the suit for seeking specific
performance of the agreement dated 12.06.1979.
9. Defendant No.1 (Amar Nath) died and, therefore,
he could not file his written statement. His legal
representatives, however, filed the written statement.
Their defense was threefold.
10. First – Amar Nath (defendant No.1) was not the
absolute owner of the suit property because the suit
property was a Joint Hindu Family property; Second,
Amar Nath (defendant No.1) was, therefore, not
competent to enter into an agreement to sell the suit
property; and the Third, the sale in question was not
for any legal necessity and, therefore, it was bad in law
and not binding on the legal representatives because
their consents were not obtained by Amar Nath
(defendant No.1) prior to entering into an agreement of
sale.
5
11. So far as defendant Nos. 2 to 4 are concerned,
they filed their written statement. They admitted that
the suit property belonged to Amar Nath(defendant
No.1). They averred that they purchased the suit
property from Amar Nath pursuant to the agreement,
which they had entered into with him somewhere in
the year 1978. They alleged that they had no
knowledge of the agreement of the plaintiffs and,
therefore, they were bona fide purchasers of the suit
property.
12. The Trial Court by judgment/decree dated
22.11.1991 dismissed the suit. It was held that the
agreement dated 12.06.1979 is proved; the plaintiffs
were ready and willing to perform their part of the
agreement but since Amar Nath was not competent to
enter into the agreement with the plaintiffs because
the suit property was a Joint Hindu Family property
and Amar Nath was only a Karta; and lastly, the
6
Plantiffs failed to aver that the sale was for the legal
necessity and for the benefit of the family.
13. The plaintiffs felt aggrieved and filed appeal
before the First Appellate Court. By judgment/decree
dated 15.04.1993, the First Appellate Court allowed
the appeal, set aside the judgment/decree of the Trial
Court and decreed the plaintiffs’ suit.
14. The First Appellate Court held that the sale deed
executed by Late Amar Nath in favour of defendant
Nos. 2 and 3 was bad in law inasmuch as the same
was obtained by a collusion so as to deprive the
plaintiffs of the fruits of their agreement dated
12.06.1979. It was also held that defendant Nos. 2
and 3 were not bona fide purchaser of the suit
property. It was also held that the suit property was
Joint Hindu family property and Amar Nath was its
Karta. It was also held that the agreement of sale
entered into by Amar Nath was binding on all
coparceners.
7
15. The defendants, therefore, felt aggrieved and filed
the second appeal before the High Court. By
impugned order, the High Court dismissed the second
appeal and upheld the judgment/decree of the first
Appellate Court.
16. It was held that Amar Nath executed the
agreement dated 12.06.1979 as a Karta of Joint Hindu
Family. It was also held that the agreement was
binding on Amar Nath and his legal representatives.
17. It is against this order, the defendants have
carried the matter to this Court in special leave to
appeal.
18. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal.
19. In the first place, in our considered opinion,
when the three Courts below have held against the
defendants and in favour of the plaintiffs that the
plaintiffs were ready and willing to perform their part
8
of the agreement, this finding was binding on the High
Court and also on this Court.
20. Indeed, the Trial Court had already recorded this
finding in plaintiffs’ favour but since the Trial Court
dismissed the suit on other grounds, the defendants
had a right to challenge this finding by filing cross
objection before the First Appellate Court in plaintiffs’
appeal but the defendants did not do so and accepted
this finding. The First Appellate Court while decreeing
the plaintiffs’ suit upheld this finding being not under
challenge and the High Court upheld it by dismissing
defendants’ second appeal.
21. A finding on the issue of readiness and
willingness is one of the important and relevant
findings in a suit for specific performance of an
agreement. It is a finding based on facts and once it is
recorded, it becomes a finding of fact.
22. In this view of the matter, unless such finding is
found to be against the pleadings or contrary to the
9
evidence or the law governing the issue, it is binding
on the High Court and also on this Court.
23. Learned counsel for the appellants was not able
to point out any infirmity or illegality in this finding. It
is apart from the fact that the appellants (defendants)
failed to challenge its legality and correctness at the
first appellate stage in an appeal filed by the plaintiffs,
which was the appropriate stage to challenge. It is,
therefore, binding on this Court.
24. The other argument of learned counsel for the
appellants (defendants) was that since the respondents
(plaintiffs) got impleaded only some legal
representatives out of eight legal representatives of late
Amar Nath in their first appeal and remaining legal
representatives were not impleaded, the decree of the
Trial Court dismissing the civil suit qua those legal
representatives, who were not made parties in the
appeal, had become final.
10
25. It was, therefore, urged that the First Appellate
Court by allowing the appeal filed by the plaintiffs and
decreeing their suit has passed two conflicting
decreesone against some which has decreed the suit
and other against some which has resulted in
dismissal of the suit. It is not legally permissible.
26. This submission was dealt with by the High
Court while answering 5th substantial question and
was rejected. In our view, the High Court was right for
the following reasons.
27. First, all the legal representatives of late Amar
Nath were already on record in the Trial Court in the
suit and all had taken similar defense in support of
their case against the plaintiffs. In other words, there
was no conflict of interest amongst them either inter se
or qua the plaintiffs.
28. Second, those legal representatives, who filed the
written statement, had filed a joint and common
written statement whereas those, who did not file the
11
written statement, had given their power of attorney in
favour of the legal representatives, who had filed the
written statement.
29. Third, one legal representative, who did not file
his written statement remained exparte. In these
circumstances, it was not necessary to implead him
as party respondent in the first appeal.
30. Fourth, it is a trite law that if out of all the legal
representatives, majority of them are already on record
and they contested the case on merits, it is not
necessary to bring other legal representatives on
record. The reason is that the estate and the interest
of the deceased devolved on the legal representatives is
sufficiently represented by those who are already on
record.
31. Fifth, the defendants, who were respondents in
the first appeal, did not raise any objection before the
First Appellate Court. Had such objection been raised,
the appellants (plaintiffs) would have cured the defect
12
by impleading them as party respondents before the
First Appellate Court.
32. As rightly argued by the counsel for the
respondents, the reason for not impleading some legal
representatives in the first appeal was that their
names were not shown in the decree of the Trial Court.
It was for this reason, the first appeal was filed by the
plaintiffs only against those legal representatives
whose names were shown in the decree.
33. In the light of this factual scenario and the
reasons set out above, we are of the considered
opinion that no case was made out by the appellants
to challenge the decree before the High Court on the
ground that the impugned decree has resulted in
passing any conflicting decree by the First Appellate
Court one of dismissal of the suit by the Trial Court
and the other decreeing the suit by the First Appellate
Court.
13
34. Learned counsel for the appellants (defendants)
then argued that the two Courts below were not
justified in declaring the sale made in favour of
defendant Nos. 2 and 3 by defendant No.1 as bad in
law. According to the learned counsel, it should have
been held to be a bona fide sale for consideration
without notices to the agreement of the plaintiff with
defendant No.1.
35. We find no merit in this submission for more
than one reason. First, the finding on this issue being
a concurrent finding of fact recorded against the
appellants by the Appellate Court and the High Court,
the same is binding on this Court.
36. Second, the finding apart from being concurrent
is otherwise not liable to be interfered with for the
reason that the sale made by defendant No.1 in favour
of defendant Nos. 2 and 3 was on the face of it, a
collusive sale made to avoid the agreement of the
plaintiffs.
14
37. Third, defendant Nos. 2 and 3 did not adduce any
evidence to prove that their agreement was prior in
point of time as against the agreement of the plaintiffs
and, therefore, they were entitled to get the sale deed
executed pursuant to their prior agreement.
38. Fourth, the legal representatives of Amar Nath
having stepped into his shoes were entitled to raise
that defense which was available to Amar Nath against
the plaintiffs in addition to one which was appropriate
to their character as legal representatives as provided
under Order 22 Rule 4(2) of the Code of Civil
Procedure, 1908.
39. Fifth, the plaintiffs were only entitled to prove the
existence of the valid agreement with the defendant
No.1 – Amar Nath and its performance by the plaintiffs
qua him. This finding of readiness and willingness was
recorded in plaintiffs’ favour throughout.
40. The Trial Court had framed two Issues (7 and 8)
on the questions as to whether the suit property was a
15
Joint Hindu Family property of Amar Nath and, if so,
whether Amar Nath was its Karta or not. The Trial
Court held that the suit property was the Joint Hindu
Family property of which Amar Nath was its Karta.
41. This Court in a case Sunil Kumar & Anr. vs.
Ram Parkash & Ors., (1988) 2 SCC 77 examined the
status and the powers of a Karta while dealing with
the Joint Hindu Family property in the following
words.
“6. In this appeal we are called upon to
decide the only question whether a suit for
permanent injunction restraining the Karta
of the joint Hindu family from alienating the
house property belonging to the joint Hindu
family in pursuance of the agreement to sell
executed already in favour of the predecessor
of the appellants, Jai Bhagwan, since
deceased, is maintainable. It is well settled
that in a Joint Hindu Mitakshara Family, a
son acquires by birth an interest equal to
that of the father in ancestral property. The
father by reason of his paternal relation and
his position as the head of the family is its
Manager and he is entitled to alienate joint
family property so as to bind the interests of
both adult and minor coparceners in the
property, provided that the alienation is
made for legal necessity or for the benefit of
the estate or for meeting an antecedent debt.
The power of the Manager of a joint Hindu
16
family to alienate a joint Hindu family
property is analogous to that of a Manager for
an infant heir as observed by the Judicial
Committee in Hunoomanpersaud Panday v.
Mussumat Babooee Munraj Koonweree (1856)
6 Moo Ind App 393)”
42. Keeping in view the aforementioned principle of
law and applying the same to the facts of the case at
hand, we are of the considered opinion that the Courts
below were justified in holding that the agreement
dated 12.6.1979 was binding on the legal heirs of
Amar Nath for the following reasons:
43. First, no issue was framed on the question of
“legal necessity”. In our opinion, it should have been
framed; Second, yet the First Appellate Court while
allowing the plaintiffs’ appeal recorded a categorical
finding that one son of Amar Nath had signed the
agreement in question and, therefore, it was a case
where legal representatives of Late Amar Nath were
aware of the existence of the agreement and also had
given their consent; and Third, this finding was upheld
17
by the High Court while dismissing the defendants’
appeal.
44. One cannot dispute the power of a Karta to sell
the Joint Hindu Family property. It is, indeed,
inherent in him. However, it is subject to certain
restrictions, namely, the sale should be for the legal
necessity and for the benefit of the family.
45. It is clear that Amar Nath had obtained the
consent of the legal heirs before entering into an
agreement for sale of the suit property to the plaintiffs.
The very fact that one son of Amar Nath was a
signatory to the agreement was sufficient to draw a
presumption that the agreement to sell was made by
Amar Nath with the consent of other coparceners. It is
also for the reason because none of the coparceners
had raised any objection till the filing of written
statement in the suit. The very fact that Amar Nath
sold the suit property to defendant Nos. 2 and 3 and
which was not objected to by his legal heirs showed
18
that the plea regarding legal necessity had no factual
basis to sustain.
46. It is for all these reasons, we are of the view that
the appellants (defendants) have failed to make out
any case so as to call for any interference in the
impugned judgment.
47. This takes us to examine another question which
arises in this case but was not taken note of by the
Courts below while decreeing the suit. It relates to the
nature of decree to be passed in this case.
48. The question arises in this way. The effect of
the decree passed in this case is that the original
defendant No.1, now represented by his legal
representatives (Appellant Nos.14 & 7) along with
legal representatives of original defendant No. 2, i.e.,
(i) Rita Mittal, (ii) Akanksha and (iii) Akshay Mittal,
and defendant No. 3 (Appellant No.6 herein) are
required to execute the sale deed in favour of legal
representatives of original plaintiff No.1, i.e.,
19
respondent No.1(i) Sudesh Goel, (ii) Ajay Goel and
(iii) Sanjay K. Goel and Atul Kumar, plaintiff No.2
(respondent No.2 herein) jointly.
49. Yet another effect of the decree is that the
transaction of sale of suit property between original
defendant No.1, now represented by his legal
representatives (Appellant Nos.14 & 7) and
defendant No.2 (Appellant No.5 herein), now
represented by his legal representatives and
defendant Nos.3(Appellant No.6 herein) is declared
bad in law and stands nullified. As a consequence
thereof, legal representatives of defendant
No.1(Appellant Nos.14 & 7) are required to return
Rs.48,000/ to original defendant No.2 (appellant
No.5 herein), now represented by his legal
representatives and defendant No.3 (appellant No.6
herein) in the absence of any contract to the
contrary in this behalf between the parties. The
reason being that once the sale is declared bad, the
20
transaction of sale fails and, therefore, the
seller(defendant No.1) has no right to retain the sale
consideration with himself and has to refund the
sale consideration to the buyers(defendant Nos.2 &
3) [See Section 65 of the Indian Contract Act].
50. The question arose before this Court in the
case of Lala Durga Prasad & Anr. Vs. Deep Chand
& Ors., AIR 1954 SC 75 as to what form of decree
should be passed in the case of specific performance
of contract where the suit property is sold by the
defendant, i.e., the owner of the suit property to
another person and later he suffers a decree for
specific performance of contract directing him to
transfer the suit property to the plaintiff in term of
contract.
51. The learned JudgeVivian Bose, J. examined
this issue and speaking for the Bench in his
inimitable style of writing, held as under:
21
“Where there is a sale of the same property in
favour of a prior and subsequent transferee
and the subsequent transferee has, under the
conveyance outstanding in his favour, paid
the purchasemoney to the vendor, then in a
suit for specific performance brought by the
prior transferee, in case he succeeds, the
question arises as to the proper form of
decree in such a case. The practice of the
Courts in India has not been uniform and
three distinct lines of thought emerge.
According to one point of view, the proper
form of decree is to declare the subsequent
purchase void as against the prior transferee
and direct conveyance by the vendor alone.
A second considers that both vendor and
vendee should join, while a third would limit
execution of the conveyance to the
subsequent purchaser alone. According to
the Supreme Court, the proper form of decree
is to direct specific performance of the
contract between the vendor and the prior
transferee and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
prior transferee. He does not join in any
special covenants made between the prior
transferee and his vendor; all he does is to
pass on his title to the prior transferee.”
52. We, therefore, consider it just and proper and
with a view to end this litigation between the
parties, which is pending since 1982 and also to
balance the equities amongst the parties that
defendant No.1 through his legal representatives
22
(Appellant Nos. 14 & 7 herein) would return a sum
of Rs.48,000/ to the legal representatives of
defendant No.2 (Appellant No.5 herein) and
defendant No. 3 (Appellant No.6 herein). This
direction we give by taking recourse to our powers
under Article 142 of the Constitution of India to do
complete justice between the parties to the lis
because we do not want another round of litigation
to go on for years in future between the defendants
inter se for recovery of this amount.
53. In the light of the foregoing discussion, the
appeal is disposed of by modifying the judgment
and decree as under:
(i) The legal representatives of defendant No.1
(Appellant Nos.14 and 7) shall deposit a sum of
Rs. 48,000/ in the executing Court for being paid
to the legal representatives of defendant No.2, i.e.,
(i) Rita Mittal, (ii) Akanksha and (iii) Akshay Mittal
23
and Defendant No.3 (Appellant No.6 herein) within
three months as an outer limit.
(ii) The legal representatives of original Plaintiff
No.1,(respondent No.1 herein) i.e., (i) Sudesh Goel,
(ii) Ajay Goel, and (iii) Sanjay K. Goel and Atul
Kumar, plaintiff No.2 (respondent No.2 herein) shall
deposit in the executing Court a sum of Rs.41,000/
for being paid to the legal representatives of original
Defendant No.1 (Appellant Nos.1 to 4 and 7 herein)
within three months as an outer limit.
(iii) The original defendant No.1, now represented
by his legal representatives (Appellant Nos.14 & 7)
along with legal representatives of original
defendant No. 2 and defendant No. 3 (Appellant
No.6 herein) will jointly execute the sale deed in
favour of legal representatives of original plaintiff
No.1, i.e., respondent No.1 herein (i) Sudesh Goel,
(ii) Ajay Goel and (iii) Sanjay K. Goel and Atul
Kumar, plaintiff No.2 (respondent No.2 herein) and
24
hand over the possession of the suit property to
them simultaneously and then will withdraw the
money deposited for them in Court.
54. The executing Court will ensure completion of
proceedings within the time fixed and record due
satisfaction of the decree in accordance with law. In
case of any default, the parties will be entitled to
put the decree in execution for enforcement of the
terms of the decree of this Court amongst the
defaulting parties.
55. In view of the foregoing discussion, the appeal
stands disposed of.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
January 28, 2019
25
favour of a prior and subsequent transferee
and the subsequent transferee has, under the
conveyance outstanding in his favour, paid
the purchasemoney to the vendor, then in a
suit for specific performance brought by the
prior transferee, in case he succeeds, the
question arises as to the proper form of
decree in such a case. The practice of the
Courts in India has not been uniform and
three distinct lines of thought emerge.
According to one point of view, the proper
form of decree is to declare the subsequent
purchase void as against the prior transferee
and direct conveyance by the vendor alone.
A second considers that both vendor and
vendee should join, while a third would limit
execution of the conveyance to the
subsequent purchaser alone. According to
the Supreme Court, the proper form of decree
is to direct specific performance of the
contract between the vendor and the prior
transferee and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
prior transferee. He does not join in any
special covenants made between the prior
transferee and his vendor; all he does is to
pass on his title to the prior transferee.”
Hon'ble Mr. Justice Abhay Manohar Sapre
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5177 OF 2009
Vijay A. Mittal & Ors. ….Appellant(s)
VERSUS
Kulwant Rai (Dead) Thr. LRs.
& Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final judgment
and order dated 21.12.2007 passed by the High Court
of Punjab & Haryana at Chandigarh in RSA No.1537 of
1993 whereby the Single Judge of the High Court
dismissed the regular second appeal filed by the
appellants herein and upheld the judgment/decree
1
dated 15.04.1993 of the First Appellate Court in C.A.
No.7 of 15.02.1992.
2. In order to appreciate the controversy involved in
this appeal, it is necessary to set out the relevant facts
hereinbelow.
3. Appellant Nos.1 to 4 and 7 are the legal
representatives of the original defendant No.1Amar
Nath. Appellant No.5 (Yash Pal Mittal), who was the
original defendant No.2 also died and he is now
represented by his legal heirs (i) Rita Mittal (ii)
Akanksha and (iii) Akshay Mittal and Appellant No.6
(Sunil Mittal) is the original defendant No.3 whereas
respondent No.1 (Kulwant Rai) is the original plaintiff,
who also died and is now represented by his legal heirs
(i) Sudesh Goel, (ii) Ajay Goel and (iii) Sanjay K. Goel
and respondent No.2 (Atul Kumar) is the original
plaintiff No.2 in the civil suit out of which this appeal
arises.
2
4. In short, the civil suit out of which this appeal
arises was originally filed by one Kulwant Rai as
plaintiff No.1 and Atul Kumar as plaintiff No.2 against
the defendants, namely, (1) Amar Nath, (2) Yash Pal
Mittal, (3) Sunil Mittal and (4) Bal Kishandas.
5. During the pendency of the civil suit, Kulwant
Rai (Plaintiff No.1), Amar Nath (defendant No.1) and
Yashpal Mittal (defendant No.2) died and, therefore,
their legal representatives, on whom the right to sue
devolved as detailed above, were brought on record in
places of the original plaintiff/defendants in the civil
suit to enable them to continue the lis on behalf of
those who died.
6. As mentioned above, two aforementioned
plaintiffs (respondents herein) filed a civil suit against
the aforementioned four defendants (appellants herein)
on 19.03.1982 claiming a relief of specific performance
of the agreement dated 12.06.1979 in relation to the
suit property (as detailed in the plaint) situated at
3
Narain Dass Building, Durga Charan Road, Ambala
Cantt.
7. The suit was founded on the agreement dated
12.06.1979 entered into between the plaintiffs and the
defendant No.1 (Amar Nath) for sale of the suit
property for a sum of Rs.46,000/. According to the
plaintiffs, they paid a sum of Rs.5,000/ by way of
earnest money to defendant No.1 (Amar Nath) and the
sale deed in relation to the suit property was to be
executed on or before 31.12.1979 by defendant No.1
(Amar Nath) in favour of the plaintiffs on paying the
balance consideration before the subRegistrar.
8. It was alleged that defendant No.1 (Amar Nath)
instead of selling the suit property to the plaintiffs in
terms of agreement dated 12.06.1979 sold it to
defendant Nos. 2 and 3 on 27.11.1981. The plaintiffs
alleged that they were ready to perform their part of
the agreement but it was defendant No.1 (Amar Nath)
who failed to perform his part and committed breach
4
by selling the suit property to defendant Nos. 2 and 3
on a higher price and, therefore, the plaintiffs were
constrained to file the suit for seeking specific
performance of the agreement dated 12.06.1979.
9. Defendant No.1 (Amar Nath) died and, therefore,
he could not file his written statement. His legal
representatives, however, filed the written statement.
Their defense was threefold.
10. First – Amar Nath (defendant No.1) was not the
absolute owner of the suit property because the suit
property was a Joint Hindu Family property; Second,
Amar Nath (defendant No.1) was, therefore, not
competent to enter into an agreement to sell the suit
property; and the Third, the sale in question was not
for any legal necessity and, therefore, it was bad in law
and not binding on the legal representatives because
their consents were not obtained by Amar Nath
(defendant No.1) prior to entering into an agreement of
sale.
5
11. So far as defendant Nos. 2 to 4 are concerned,
they filed their written statement. They admitted that
the suit property belonged to Amar Nath(defendant
No.1). They averred that they purchased the suit
property from Amar Nath pursuant to the agreement,
which they had entered into with him somewhere in
the year 1978. They alleged that they had no
knowledge of the agreement of the plaintiffs and,
therefore, they were bona fide purchasers of the suit
property.
12. The Trial Court by judgment/decree dated
22.11.1991 dismissed the suit. It was held that the
agreement dated 12.06.1979 is proved; the plaintiffs
were ready and willing to perform their part of the
agreement but since Amar Nath was not competent to
enter into the agreement with the plaintiffs because
the suit property was a Joint Hindu Family property
and Amar Nath was only a Karta; and lastly, the
6
Plantiffs failed to aver that the sale was for the legal
necessity and for the benefit of the family.
13. The plaintiffs felt aggrieved and filed appeal
before the First Appellate Court. By judgment/decree
dated 15.04.1993, the First Appellate Court allowed
the appeal, set aside the judgment/decree of the Trial
Court and decreed the plaintiffs’ suit.
14. The First Appellate Court held that the sale deed
executed by Late Amar Nath in favour of defendant
Nos. 2 and 3 was bad in law inasmuch as the same
was obtained by a collusion so as to deprive the
plaintiffs of the fruits of their agreement dated
12.06.1979. It was also held that defendant Nos. 2
and 3 were not bona fide purchaser of the suit
property. It was also held that the suit property was
Joint Hindu family property and Amar Nath was its
Karta. It was also held that the agreement of sale
entered into by Amar Nath was binding on all
coparceners.
7
15. The defendants, therefore, felt aggrieved and filed
the second appeal before the High Court. By
impugned order, the High Court dismissed the second
appeal and upheld the judgment/decree of the first
Appellate Court.
16. It was held that Amar Nath executed the
agreement dated 12.06.1979 as a Karta of Joint Hindu
Family. It was also held that the agreement was
binding on Amar Nath and his legal representatives.
17. It is against this order, the defendants have
carried the matter to this Court in special leave to
appeal.
18. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal.
19. In the first place, in our considered opinion,
when the three Courts below have held against the
defendants and in favour of the plaintiffs that the
plaintiffs were ready and willing to perform their part
8
of the agreement, this finding was binding on the High
Court and also on this Court.
20. Indeed, the Trial Court had already recorded this
finding in plaintiffs’ favour but since the Trial Court
dismissed the suit on other grounds, the defendants
had a right to challenge this finding by filing cross
objection before the First Appellate Court in plaintiffs’
appeal but the defendants did not do so and accepted
this finding. The First Appellate Court while decreeing
the plaintiffs’ suit upheld this finding being not under
challenge and the High Court upheld it by dismissing
defendants’ second appeal.
21. A finding on the issue of readiness and
willingness is one of the important and relevant
findings in a suit for specific performance of an
agreement. It is a finding based on facts and once it is
recorded, it becomes a finding of fact.
22. In this view of the matter, unless such finding is
found to be against the pleadings or contrary to the
9
evidence or the law governing the issue, it is binding
on the High Court and also on this Court.
23. Learned counsel for the appellants was not able
to point out any infirmity or illegality in this finding. It
is apart from the fact that the appellants (defendants)
failed to challenge its legality and correctness at the
first appellate stage in an appeal filed by the plaintiffs,
which was the appropriate stage to challenge. It is,
therefore, binding on this Court.
24. The other argument of learned counsel for the
appellants (defendants) was that since the respondents
(plaintiffs) got impleaded only some legal
representatives out of eight legal representatives of late
Amar Nath in their first appeal and remaining legal
representatives were not impleaded, the decree of the
Trial Court dismissing the civil suit qua those legal
representatives, who were not made parties in the
appeal, had become final.
10
25. It was, therefore, urged that the First Appellate
Court by allowing the appeal filed by the plaintiffs and
decreeing their suit has passed two conflicting
decreesone against some which has decreed the suit
and other against some which has resulted in
dismissal of the suit. It is not legally permissible.
26. This submission was dealt with by the High
Court while answering 5th substantial question and
was rejected. In our view, the High Court was right for
the following reasons.
27. First, all the legal representatives of late Amar
Nath were already on record in the Trial Court in the
suit and all had taken similar defense in support of
their case against the plaintiffs. In other words, there
was no conflict of interest amongst them either inter se
or qua the plaintiffs.
28. Second, those legal representatives, who filed the
written statement, had filed a joint and common
written statement whereas those, who did not file the
11
written statement, had given their power of attorney in
favour of the legal representatives, who had filed the
written statement.
29. Third, one legal representative, who did not file
his written statement remained exparte. In these
circumstances, it was not necessary to implead him
as party respondent in the first appeal.
30. Fourth, it is a trite law that if out of all the legal
representatives, majority of them are already on record
and they contested the case on merits, it is not
necessary to bring other legal representatives on
record. The reason is that the estate and the interest
of the deceased devolved on the legal representatives is
sufficiently represented by those who are already on
record.
31. Fifth, the defendants, who were respondents in
the first appeal, did not raise any objection before the
First Appellate Court. Had such objection been raised,
the appellants (plaintiffs) would have cured the defect
12
by impleading them as party respondents before the
First Appellate Court.
32. As rightly argued by the counsel for the
respondents, the reason for not impleading some legal
representatives in the first appeal was that their
names were not shown in the decree of the Trial Court.
It was for this reason, the first appeal was filed by the
plaintiffs only against those legal representatives
whose names were shown in the decree.
33. In the light of this factual scenario and the
reasons set out above, we are of the considered
opinion that no case was made out by the appellants
to challenge the decree before the High Court on the
ground that the impugned decree has resulted in
passing any conflicting decree by the First Appellate
Court one of dismissal of the suit by the Trial Court
and the other decreeing the suit by the First Appellate
Court.
13
34. Learned counsel for the appellants (defendants)
then argued that the two Courts below were not
justified in declaring the sale made in favour of
defendant Nos. 2 and 3 by defendant No.1 as bad in
law. According to the learned counsel, it should have
been held to be a bona fide sale for consideration
without notices to the agreement of the plaintiff with
defendant No.1.
35. We find no merit in this submission for more
than one reason. First, the finding on this issue being
a concurrent finding of fact recorded against the
appellants by the Appellate Court and the High Court,
the same is binding on this Court.
36. Second, the finding apart from being concurrent
is otherwise not liable to be interfered with for the
reason that the sale made by defendant No.1 in favour
of defendant Nos. 2 and 3 was on the face of it, a
collusive sale made to avoid the agreement of the
plaintiffs.
14
37. Third, defendant Nos. 2 and 3 did not adduce any
evidence to prove that their agreement was prior in
point of time as against the agreement of the plaintiffs
and, therefore, they were entitled to get the sale deed
executed pursuant to their prior agreement.
38. Fourth, the legal representatives of Amar Nath
having stepped into his shoes were entitled to raise
that defense which was available to Amar Nath against
the plaintiffs in addition to one which was appropriate
to their character as legal representatives as provided
under Order 22 Rule 4(2) of the Code of Civil
Procedure, 1908.
39. Fifth, the plaintiffs were only entitled to prove the
existence of the valid agreement with the defendant
No.1 – Amar Nath and its performance by the plaintiffs
qua him. This finding of readiness and willingness was
recorded in plaintiffs’ favour throughout.
40. The Trial Court had framed two Issues (7 and 8)
on the questions as to whether the suit property was a
15
Joint Hindu Family property of Amar Nath and, if so,
whether Amar Nath was its Karta or not. The Trial
Court held that the suit property was the Joint Hindu
Family property of which Amar Nath was its Karta.
41. This Court in a case Sunil Kumar & Anr. vs.
Ram Parkash & Ors., (1988) 2 SCC 77 examined the
status and the powers of a Karta while dealing with
the Joint Hindu Family property in the following
words.
“6. In this appeal we are called upon to
decide the only question whether a suit for
permanent injunction restraining the Karta
of the joint Hindu family from alienating the
house property belonging to the joint Hindu
family in pursuance of the agreement to sell
executed already in favour of the predecessor
of the appellants, Jai Bhagwan, since
deceased, is maintainable. It is well settled
that in a Joint Hindu Mitakshara Family, a
son acquires by birth an interest equal to
that of the father in ancestral property. The
father by reason of his paternal relation and
his position as the head of the family is its
Manager and he is entitled to alienate joint
family property so as to bind the interests of
both adult and minor coparceners in the
property, provided that the alienation is
made for legal necessity or for the benefit of
the estate or for meeting an antecedent debt.
The power of the Manager of a joint Hindu
16
family to alienate a joint Hindu family
property is analogous to that of a Manager for
an infant heir as observed by the Judicial
Committee in Hunoomanpersaud Panday v.
Mussumat Babooee Munraj Koonweree (1856)
6 Moo Ind App 393)”
42. Keeping in view the aforementioned principle of
law and applying the same to the facts of the case at
hand, we are of the considered opinion that the Courts
below were justified in holding that the agreement
dated 12.6.1979 was binding on the legal heirs of
Amar Nath for the following reasons:
43. First, no issue was framed on the question of
“legal necessity”. In our opinion, it should have been
framed; Second, yet the First Appellate Court while
allowing the plaintiffs’ appeal recorded a categorical
finding that one son of Amar Nath had signed the
agreement in question and, therefore, it was a case
where legal representatives of Late Amar Nath were
aware of the existence of the agreement and also had
given their consent; and Third, this finding was upheld
17
by the High Court while dismissing the defendants’
appeal.
44. One cannot dispute the power of a Karta to sell
the Joint Hindu Family property. It is, indeed,
inherent in him. However, it is subject to certain
restrictions, namely, the sale should be for the legal
necessity and for the benefit of the family.
45. It is clear that Amar Nath had obtained the
consent of the legal heirs before entering into an
agreement for sale of the suit property to the plaintiffs.
The very fact that one son of Amar Nath was a
signatory to the agreement was sufficient to draw a
presumption that the agreement to sell was made by
Amar Nath with the consent of other coparceners. It is
also for the reason because none of the coparceners
had raised any objection till the filing of written
statement in the suit. The very fact that Amar Nath
sold the suit property to defendant Nos. 2 and 3 and
which was not objected to by his legal heirs showed
18
that the plea regarding legal necessity had no factual
basis to sustain.
46. It is for all these reasons, we are of the view that
the appellants (defendants) have failed to make out
any case so as to call for any interference in the
impugned judgment.
47. This takes us to examine another question which
arises in this case but was not taken note of by the
Courts below while decreeing the suit. It relates to the
nature of decree to be passed in this case.
48. The question arises in this way. The effect of
the decree passed in this case is that the original
defendant No.1, now represented by his legal
representatives (Appellant Nos.14 & 7) along with
legal representatives of original defendant No. 2, i.e.,
(i) Rita Mittal, (ii) Akanksha and (iii) Akshay Mittal,
and defendant No. 3 (Appellant No.6 herein) are
required to execute the sale deed in favour of legal
representatives of original plaintiff No.1, i.e.,
19
respondent No.1(i) Sudesh Goel, (ii) Ajay Goel and
(iii) Sanjay K. Goel and Atul Kumar, plaintiff No.2
(respondent No.2 herein) jointly.
49. Yet another effect of the decree is that the
transaction of sale of suit property between original
defendant No.1, now represented by his legal
representatives (Appellant Nos.14 & 7) and
defendant No.2 (Appellant No.5 herein), now
represented by his legal representatives and
defendant Nos.3(Appellant No.6 herein) is declared
bad in law and stands nullified. As a consequence
thereof, legal representatives of defendant
No.1(Appellant Nos.14 & 7) are required to return
Rs.48,000/ to original defendant No.2 (appellant
No.5 herein), now represented by his legal
representatives and defendant No.3 (appellant No.6
herein) in the absence of any contract to the
contrary in this behalf between the parties. The
reason being that once the sale is declared bad, the
20
transaction of sale fails and, therefore, the
seller(defendant No.1) has no right to retain the sale
consideration with himself and has to refund the
sale consideration to the buyers(defendant Nos.2 &
3) [See Section 65 of the Indian Contract Act].
50. The question arose before this Court in the
case of Lala Durga Prasad & Anr. Vs. Deep Chand
& Ors., AIR 1954 SC 75 as to what form of decree
should be passed in the case of specific performance
of contract where the suit property is sold by the
defendant, i.e., the owner of the suit property to
another person and later he suffers a decree for
specific performance of contract directing him to
transfer the suit property to the plaintiff in term of
contract.
51. The learned JudgeVivian Bose, J. examined
this issue and speaking for the Bench in his
inimitable style of writing, held as under:
21
“Where there is a sale of the same property in
favour of a prior and subsequent transferee
and the subsequent transferee has, under the
conveyance outstanding in his favour, paid
the purchasemoney to the vendor, then in a
suit for specific performance brought by the
prior transferee, in case he succeeds, the
question arises as to the proper form of
decree in such a case. The practice of the
Courts in India has not been uniform and
three distinct lines of thought emerge.
According to one point of view, the proper
form of decree is to declare the subsequent
purchase void as against the prior transferee
and direct conveyance by the vendor alone.
A second considers that both vendor and
vendee should join, while a third would limit
execution of the conveyance to the
subsequent purchaser alone. According to
the Supreme Court, the proper form of decree
is to direct specific performance of the
contract between the vendor and the prior
transferee and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
prior transferee. He does not join in any
special covenants made between the prior
transferee and his vendor; all he does is to
pass on his title to the prior transferee.”
52. We, therefore, consider it just and proper and
with a view to end this litigation between the
parties, which is pending since 1982 and also to
balance the equities amongst the parties that
defendant No.1 through his legal representatives
22
(Appellant Nos. 14 & 7 herein) would return a sum
of Rs.48,000/ to the legal representatives of
defendant No.2 (Appellant No.5 herein) and
defendant No. 3 (Appellant No.6 herein). This
direction we give by taking recourse to our powers
under Article 142 of the Constitution of India to do
complete justice between the parties to the lis
because we do not want another round of litigation
to go on for years in future between the defendants
inter se for recovery of this amount.
53. In the light of the foregoing discussion, the
appeal is disposed of by modifying the judgment
and decree as under:
(i) The legal representatives of defendant No.1
(Appellant Nos.14 and 7) shall deposit a sum of
Rs. 48,000/ in the executing Court for being paid
to the legal representatives of defendant No.2, i.e.,
(i) Rita Mittal, (ii) Akanksha and (iii) Akshay Mittal
23
and Defendant No.3 (Appellant No.6 herein) within
three months as an outer limit.
(ii) The legal representatives of original Plaintiff
No.1,(respondent No.1 herein) i.e., (i) Sudesh Goel,
(ii) Ajay Goel, and (iii) Sanjay K. Goel and Atul
Kumar, plaintiff No.2 (respondent No.2 herein) shall
deposit in the executing Court a sum of Rs.41,000/
for being paid to the legal representatives of original
Defendant No.1 (Appellant Nos.1 to 4 and 7 herein)
within three months as an outer limit.
(iii) The original defendant No.1, now represented
by his legal representatives (Appellant Nos.14 & 7)
along with legal representatives of original
defendant No. 2 and defendant No. 3 (Appellant
No.6 herein) will jointly execute the sale deed in
favour of legal representatives of original plaintiff
No.1, i.e., respondent No.1 herein (i) Sudesh Goel,
(ii) Ajay Goel and (iii) Sanjay K. Goel and Atul
Kumar, plaintiff No.2 (respondent No.2 herein) and
24
hand over the possession of the suit property to
them simultaneously and then will withdraw the
money deposited for them in Court.
54. The executing Court will ensure completion of
proceedings within the time fixed and record due
satisfaction of the decree in accordance with law. In
case of any default, the parties will be entitled to
put the decree in execution for enforcement of the
terms of the decree of this Court amongst the
defaulting parties.
55. In view of the foregoing discussion, the appeal
stands disposed of.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
January 28, 2019
25
